[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]
H.R. 1462, THE PLATTE RIVER RECOVERY IMPLEMENTATION PROGRAM AND
PATHFINDER MODIFICATION AUTHORIZATION ACT
=======================================================================
LEGISLATIVE HEARING
before the
SUBCOMMITTEE ON WATER AND POWER
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
Thursday, April 26, 2007
__________
Serial No. 110-20
__________
Printed for the use of the Committee on Natural Resources
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COMMITTEE ON NATURAL RESOURCES
NICK J. RAHALL II, West Virginia, Chairman
DON YOUNG, Alaska, Ranking Republican Member
Dale E. Kildee, Michigan Jim Saxton, New Jersey
Eni F.H. Faleomavaega, American Elton Gallegly, California
Samoa John J. Duncan, Jr., Tennessee
Neil Abercrombie, Hawaii Wayne T. Gilchrest, Maryland
Solomon P. Ortiz, Texas Ken Calvert, California
Frank Pallone, Jr., New Jersey Chris Cannon, Utah
Donna M. Christensen, Virgin Thomas G. Tancredo, Colorado
Islands Jeff Flake, Arizona
Grace F. Napolitano, California Stevan Pearce, New Mexico
Rush D. Holt, New Jersey Henry E. Brown, Jr., South
Raul M. Grijalva, Arizona Carolina
Madeleine Z. Bordallo, Guam Luis G. Fortuno, Puerto Rico
Jim Costa, California Cathy McMorris Rodgers, Washington
Dan Boren, Oklahoma Bobby Jindal, Louisiana
John P. Sarbanes, Maryland Louie Gohmert, Texas
George Miller, California Tom Cole, Oklahoma
Edward J. Markey, Massachusetts Rob Bishop, Utah
Peter A. DeFazio, Oregon Bill Shuster, Pennsylvania
Maurice D. Hinchey, New York Dean Heller, Nevada
Patrick J. Kennedy, Rhode Island Bill Sali, Idaho
Ron Kind, Wisconsin Doug Lamborn, Colorado
Lois Capps, California Vacancy
Jay Inslee, Washington
Mark Udall, Colorado
Joe Baca, California
Hilda L. Solis, California
Stephanie Herseth Sandlin, South
Dakota
Heath Shuler, North Carolina
James H. Zoia, Chief of Staff
Jeffrey P. Petrich, Chief Counsel
Lloyd Jones, Republican Staff Director
Lisa Pittman, Republican Chief Counsel
------
SUBCOMMITTEE ON WATER AND POWER
GRACE F. NAPOLITANO, California, Chairwoman
CATHY McMORRIS RODGERS, Washington, Ranking Republican Member
Jim Costa, California Ken Calvert, California
George Miller, California Dean Heller, Nevada
Mark Udall, Colorado Doug Lamborn, Colorado
Joe Baca, California Don Young, Alaska, ex officio
Vacancy
Nick J. Rahall II, West Virginia,
ex officio
------
CONTENTS
----------
Page
Hearing held on Thursday, April 26, 2007......................... 1
Statement of Members:
Napolitano, Hon. Grace F., a Representative in Congress from
the State of California.................................... 1
Prepared statement of.................................... 2
Rodgers, Hon. Cathy McMorris, a Representative in Congress
from the State of Washington............................... 2
Prepared statement of.................................... 3
Smith, Hon. Adrian, a Representative in Congress from the
State of Nebraska.......................................... 4
Udall, Hon. Mark, a Representative in Congress from the State
of Colorado................................................ 5
Prepared statement of.................................... 6
Statement of Witnesses:
Berryman, Alan, Assistant General Manager, Northern Colorado
Water Conservancy District, Berthoud, Colorado............. 18
Prepared statement of.................................... 19
Response to questions submitted for the record........... 21
Bleed, Ann, Director, Nebraska Department of Natural
Resources, Lincoln, Nebraska............................... 22
Prepared statement of.................................... 23
Response to questions submitted for the record........... 24
Kowalski, Ted, Program Manager, Colorado Water Conservation
Board, Denver, Colorado.................................... 27
Prepared statement of.................................... 29
Response to questions submitted for the record........... 30
Luecke, Daniel, Platte River Issues Consultant to the
National Wildlife Federation, Boulder, Colorado............ 31
Prepared statement of.................................... 32
Response to questions submitted for the record........... 33
Peltier, Jason, Deputy Assistant Secretary for Water and
Science, Bureau of Reclamation, Washington, D.C............ 7
Prepared statement of.................................... 8
Response to questions submitted for the record........... 9
Purcell, Mike, Director, Wyoming Water Development
Commission, and Chairman of the Governance Committee,
Platte River Recovery Implementation Program, Cheyenne,
Wyoming.................................................... 35
Prepared statement of.................................... 37
Response to questions submitted for the record........... 40
Additional materials supplied:
List of documents submitted for the record and retained in
the Committee's official files............................. 4
LEGISLATIVE HEARING ON ``H.R. 1462, THE PLATTE RIVER RECOVERY
IMPLEMENTATION PROGRAM AND PATHFINDER MODIFICATION AUTHORIZATION ACT''
----------
Thursday, April 26, 2007
U.S. House of Representatives
Subcommittee on Water and Power
Committee on Natural Resources
Washington, D.C.
----------
The Subcommittee met, pursuant to call, at 2:00 p.m. in
Room 1324, Longworth House Office Building, Hon. Grace F.
Napolitano [Chairwoman of the Subcommittee] presiding.
Present: Representatives Napolitano, McMorris Rodgers,
Udall, Baca and Lamborn.
Mrs. Napolitano. This meeting of the Subcommittee on Water
and Power will come to order. My Ranking Member is on her way,
so she will join us momentarily.
The purpose of this meeting of the Subcommittee is to hold
a legislative hearing on H.R. 1462, the Platte River Recovery
Implementation Program and Pathfinder Modification
Authorization Act introduced by my friend and member of the
Subcommittee, Representative Mark Udall of Colorado's 2nd
District.
I am also pleased to welcome my Members as they walk in and
take their seats, our colleagues on the Subcommittee, and ask
unanimous consent that Congressman Adrian Smith be allowed to
sit with the Subcommittee this afternoon and to participate in
the Subcommittee proceedings.
Mrs. Napolitano. Without objection, so ordered.
I will begin the hearing with my brief statement, after
which I will recognize my Ranking Member of the Subcommittee
for any statement she may have. Any additional material may be
submitted for the record, which will remain open for 10 days.
STATEMENT OF THE HONORABLE GRACE F. NAPOLITANO, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mrs. Napolitano. The legislation before us today represents
a decade of work reaching a cooperative agreement to restore
habitat for a number of threatened and endangered species.
Congratulations to all the parties for your hard work and for
your determination that it could work for all involved.
The endangered species issues on the Central Platte River
are in large part the result and due to almost a century of
operation by the Bureau of Reclamation's Platte River Project
in Wyoming, Colorado and Nebraska.
H.R. 1462 implements a proactive and sensible solution for
three states, for the Federal government, for the water users
and for the environmental groups, all of whom have worked
together diligently to restore flows and habitat for these
species. This legislation lends further credibility to the idea
that irrigation and restoration can occur together.
I trust we have identified a solution that will allow
continued agricultural production while enhancing and bringing
new economic benefits arising from tourism to your restored
river. This program has the potential to add new economic
benefits to the local communities as a direct result of
restoration.
A warm welcome to our witnesses. I look forward to your
testimony.
And now I yield to my friend from Spokane, the Ranking
Minority Member of the Subcommittee, Congresswoman Cathy
McMorris Rodgers, for her statement.
[The prepared statement of Mrs. Napolitano follows:]
Statement of The Honorable Grace Napolitano, a Representative in
Congress from the State of California
The legislation before us today represents a decade of work,
reaching a cooperative agreement to restore habitat for a number of
threatened and endangered species. I would like to congratulate the
parties involved for their hard work on this.
The endangered species issues on the central Platte River are in
large part the result of almost a century of operation by the Bureau of
Reclamation's Platte River Project in Wyoming, Colorado, and Nebraska.
H.R. 1462 will implement a proactive and sensible solution from three
states, the Federal government, water users and environmental groups,
all of whom have worked hard to restore flows and habitat for these
species.
This legislation lends credibility to the idea that irrigation and
restoration can occur together. I hope that we have found a solution
that will allow continued agricultural production while enhancing and
bringing new economic benefits arising from tourism to a restored
river. This program has the potential to add countless tourism dollars
to local economies as a direct result of restoration.
I welcome our witnesses this afternoon, and I look forward to the
testimony.
______
STATEMENT OF THE HONORABLE CATHY MCMORRIS RODGERS, A
REPRESENTATIVE IN CONGRESS FROM THE STATE OF WASHINGTON
Mrs. McMorris Rodgers. Thank you, Madam Chairman. I thank
you for having the hearing. It is great to be here today as we
discuss a familiar topic in this Subcommittee, the Endangered
Species Act, and how it impacts western water and power
supplies.
As many of you know, my home region of the Pacific
Northwest is full of ESA conflicts that create massive
uncertainty for our farmers and ranchers, our communities and
even the future of our fish populations.
As we have witnessed time and again in the west, the ESA
has become the source of much litigation rather than actual
species recovery. Because the ESA was so broadly drafted, the
details have been filled in by the courts so often. I don't
think that that was anyone's intent in 1973, and that is why,
in my opinion, the ESA needs to be improved.
Uncertainty is why we are here today. Communities in the
Platte River Valley have experienced many jeopardy opinions,
much legal wrangling and a 15-year dam relicensing nightmare,
all of which has left a legacy of an uncertain future for a
growing region. Meanwhile, actions to protect four endangered
species have been piecemeal. Wyoming's Governor put it best.
There are no good choices in this area.
To the credit of those involved, they recognize they
couldn't let the perfect be the enemy of the good. They came
together, and we have a product before us today. It is by no
means the perfect solution, nor is it the worst, but it is a
meaningful step based upon decades of negotiation.
This bill is an example of people talking and listening in
good faith. Not every region has the ability to come together
and work in a collaborative fashion like this, and the ESA
often doesn't help. This law fosters conflict and stalemates
instead of resolution and action, which is why I think it needs
to be changed, but I commend everyone here today for working
together to benefit your region in the face of a flawed law.
There are still many unanswered questions about the bill,
and that is why we are having the hearing. I welcome everyone
to the hearing and welcome the witnesses. Thank you for being
here. I look forward to working with you on this bill.
[The prepared statement of Mrs. McMorris Rodgers follows:]
Statement of The Honorable Cathy McMorris Rodgers,
Ranking Member, Subcommittee on Water and Power
Today, we will discuss a familiar topic in this Subcommittee: the
Endangered Species Act and how it impacts western water and power
supplies. As many of you know, my home region of the Pacific Northwest
is full of ESA conflicts that create massive uncertainty for our
farmers and ranchers, our communities and even the future of our fish
populations. Nothing or nobody wins, but the lawyers.
As we have witnessed time and again in the West, the ESA has become
the source of much litigation rather than actual species recovery.
Because the ESA was so broadly drafted, the details have been filled in
by the courts and the bureaucrats. I don't think that was anyone's
intent in 1973 and that's why the overall ESA needs to be improved.
Uncertainty is why we are here today. Communities in the Platte
River Valley have experienced many jeopardy opinions, much legal
wrangling and a 15-year dam relicensing nightmare--all of which has
left the legacy of an uncertain future for a growing region. Meanwhile,
actions to protect four endangered species have been piecemeal.
Wyoming's Governor put it best when he said ``there are no good choices
in this area.''
To the credit of those involved, different factions came together
and we have the product before us today. It is by no means the perfect
solution nor is it the worst, but it's a meaningful step based upon
decades of negotiation. This bill is an example of people talking and
listening in good faith.
Not every region has the ability to come together and work in a
collaborative fashion like this and the ESA doesn't help. This law
fosters conflict and stalemates instead of bringing about resolution
and action. That's why I want to change the underlying law--but I
commend everyone here today for working together to benefit your region
in the face of a flawed law.
There are still many unanswered questions about this bill and
that's why we're having this hearing. I welcome Members of the
Subcommittee and the witnesses for being here and look forward to
working with you on this bill.
______
Mrs. Napolitano. Thank you, ma'am.
For the record, to be introduced into the record rather,
there will be letters from the Central Nebraska Public Power
and Irrigation District, the City of Aurora, Colorado,
Centennial Water and Sanitation District, from Denver Water,
from the City of Lakewood, Colorado, from the City of Loveland,
Colorado, and from the Nebraska Public Power District.
Without objection, so ordered.
NOTE: The information listed below has been retained in the
Committee's official files:
Centennial Water and Sanitation District,
Centennial, Colorado, Letter submitted for the record
Loveland Department of Water and Power, Loveland,
Colorado, Letter submitted for the record
Denver Water, Denver, Colorado, Letter submitted
for the record
City of Aurora, Colorado, Letter submitted for
the record
City of Lakewood, Colorado, Letter submitted for
the record
Kraus, Don, The Central Nebraska Public Power and
Irrigation District, Statement submitted for the record
Kowalski, Ted, Program Manager, Colorado Water
Conservation Board, Denver, Colorado, Resolution submitted for
the record
Nebraska Public Power District, Letter submitted
for the record
------
Mrs. Napolitano. Thank you. At this point I will start
recognizing the Members as they have arrived, those who wish to
make a statement may do so.
All Members who desire to be heard will be given an
opportunity to be heard, and you have already been given the
authority to do so. You are reminded that additional material
may be submitted for the record.
We do have a full complement of witnesses, so we will ask
Members to keep their remarks brief, and the five minute rule
with our timer will be enforced. I don't think we are going to
have that much of a problem today on that.
I would like to recognize Congressman Smith for any
statement if you have one.
STATEMENT OF THE HONORABLE ADRIAN SMITH, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEBRASKA
Mr. Smith. Thank you, Madam Chairwoman, for holding this
hearing today and for allowing me to participate in the hearing
on H.R. 1462, the Platte River Recovery Implementation Program
and Pathfinder Modification Authorization Act. This hearing
will give us the opportunity to listen to those on the ground
in Nebraska, Wyoming and Colorado regarding their collaborative
effort.
It is encouraging to see this longstanding issue finally
reach a settlement after years of study and review by the
states, Federal government, water users, landowners and other
interested parties. The time has come to resolve this matter
once and for all.
I cosponsored this legislation as part of the consensus to
recognize the reality of the challenges before us with
collective decision making and cooperation. However, this
agreement does impact our farmers and ranchers, and we must
continue to be cognizant of the impact of the Endangered
Species Act.
As we move forward with the implementation of the program,
positive and negative economic impacts must be assessed and
considered in order to minimize adverse effects of the recovery
efforts. This legislation is the first step of many to protect
and recover species and provide long-term water use for our
communities.
I especially want to thank Ann Bleed, Director of the
Nebraska Department of Natural Resources, for coming here today
to provide testimony regarding this bill. Director Bleed is
respected for her very straightforward approach to the
discussion of our water challenges. She has been a moderating
voice on many policies impacting Nebraska agriculture and
landowners, and I look forward to hearing from her.
I appreciate the Subcommittee for holding this hearing and
examining this important legislation. Madam Chairwoman, I look
forward to continuing to work with you, and I thank you for
your time.
I yield back.
Mrs. Napolitano. Thank you very much. Thank you. Since I
have no other, do you wish to make a statement, Mr. Lamborn?
Mr. Lamborn. No, but thank you, Madam Chairman.
Mrs. Napolitano. You are very welcome.
We have the author of the bill. Would you like to make your
statement, sir?
STATEMENT OF THE HONORABLE MARK UDALL, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF COLORADO
Mr. Udall. Thank you, Madam Chairwoman. It has been one of
those days here on the Hill, so thank you for your forbearance.
I want to thank the Chairwoman for holding this hearing on
H.R. 1462, which is my bill dealing with management and use of
water in the basin of the Platte River. The bill will authorize
the Interior Department to carry out its responsibilities under
an agreement between the Federal government and the States of
Colorado, Wyoming and Nebraska.
The purpose of that agreement is to assist in the
conservation and recovery of several endangered or threatened
species--the whooping crane and two other birds, as well as the
pallid sturgeon--in a way that will allow existing water-
related activities to continue and some additional water-
related activities to occur.
It is the result of 14 years of negotiations that
culminated last year when the Governor of Colorado and the
Governors of our two neighboring states of Wyoming and Nebraska
joined Secretary Kempthorne in signing the agreement.
Since then, initial implementing steps have begun, and the
President's budget for fiscal 2008 has requested the initial
funding for the program. We will be hearing from witnesses who
have the expertise to describe the program in great detail, and
the expert staff of the Subcommittee has prepared an excellent
background memo that is before each of us.
So I will not take the time of the Subcommittee by
attempting to outline all the elements of the program. Instead,
I want to note first that the program is modeled after a
somewhat similar program for the recovery of several endangered
species of fish in the upper basin of the Colorado River.
I have strongly supported that program because it has
enabled us in Colorado and other participating states to meet
the requirements of the Endangered Species Act while allowing
continued development and use of water for other purposes as
well.
Now, while such arrangements are not easy to work out, I
think doing so is far better than alternative approaches that
are more likely to be marked by conflicts or, of course,
litigation.
So let me congratulate all concerned in the negotiation of
this important agreement. I consider myself fortunate to have
the honor of introducing the bill and to have as its cosponsors
two of my Colorado colleagues, Representatives DeGette and
Perlmutter, as well as the entire House delegations from
Wyoming and Nebraska.
Thank you again, Madam Chairwoman, and I look forward to
hearing from our witnesses.
[The prepared statement of Mr. Udall follows:]
Statement of The Honorable Mark Udall, a Representative in Congress
from the State of Colorado
Thank you, Madam Chairwoman, and thank you for holding this hearing
on H.R. 1462, my bill dealing with management and use of water in the
basin of the Platte River.
The bill will authorize the Interior Department to carry out its
responsibilities under an agreement between the federal government and
the States of Colorado, Wyoming, and Nebraska.
The purpose of that agreement is to assist in the conservation and
recovery of several endangered or threatened species--the whooping
crane and two other birds as well as the pallid sturgeon ``in a way
that will allow existing water-related activities to continue and some
additional water-related activities to occur.
It is the result of 14 years of negotiations that culminated last
year when the Governor of Colorado and the Governors of our two
neighboring States of Wyoming and Nebraska joined Secretary Kempthorne
in signing the agreement.
Since then, initial implementing steps have begun and the
President's budget for fiscal 2008 has requested the initial funding
for the program.
We will be hearing from witnesses who have the expertise to
describe the program in great detail, and the expert staff of the
Subcommittee has prepared an excellent background memo that is before
each of us.
So, I will not take the time of the Subcommittee by attempting to
outline all the elements of the program.
Instead, I want to just note that the program is modeled after a
somewhat similar program for the recovery of several endangered species
of fish in the upper basin of the Colorado River. I have strongly
supported that program because it has enabled us in Colorado and other
participating States to meet the requirements of the Endangered Species
Act while allowing continued development and use of water for other
purposes as well.
While such arrangements are not easy to work out, I think doing so
is far better than alternative approaches that are more likely to be
marked by conflicts or litigation.
So, I congratulate all concerned in the negotiation of this
important agreement and consider myself fortunate to have the honor of
introducing the bill and to have as its cosponsors two of my Colorado
colleagues--Representatives DeGette and Perlmutter--as well as the
entire House delegations from Wyoming and Nebraska.
Thank you again, Madam Chairwoman, and I look forward to hearing
from our witnesses.
______
Mrs. Napolitano. Thank you, sir.
We will proceed to hear from our witnesses who will be
testifying on H.R. 1462. Our first and only witness in Panel I
will be Mr. Jason Peltier, Deputy Assistant Secretary for Water
and Science at the Bureau of Reclamation.
I would also like to recognize that he is being accompanied
by Mr. Mike Ryan, the Great Plains Regional Director for the
Bureau, and a representative from the Fish and Wildlife
Service. Welcome.
Gentlemen, your statements will be entered into the record.
Witnesses are asked to summarize the high points of your
testimony and limit your total remarks to five minutes.
I will allow Mr. Peltier to present his full testimony
prior to asking questions, and then once questioning is
complete Members will proceed to direct questions at you.
Without further ado, Mr. Peltier, please.
STATEMENT OF JASON PELTIER, DEPUTY ASSISTANT SECRETARY FOR
WATER AND SCIENCE, BUREAU OF RECLAMATION, U.S. DEPARTMENT OF
THE INTERIOR; ACCOMPANIED BY MARK BUTLER, FISH AND WILDLIFE
SERVICE; AND MIKE RYAN, GREAT PLAINS REGIONAL DIRECTOR, BUREAU
OF RECLAMATION
Mr. Peltier. Thank you. Thank you very much, Madam
Chairwoman, members of the Subcommittee. I appreciate the
opportunity to be here to testify on behalf of the Department
of the Interior on H.R. 1462. The Department supports passage
of the bill, and we are very encouraged by many of the comments
we heard up from the dais this afternoon.
I will be brief because Panel II is really where the rubber
hits the road folks, the folks who have invested so much time
and effort into bringing this project or this process along and
bringing us to this point.
The Platte River originates in the mountains of Wyoming and
Colorado and, as it flows through Nebraska, provides important
habitat for the whooping crane, piping plover, interior least
tern and pallid sturgeon that are listed as threatened or
endangered under the Endangered Species Act.
In 1997, the States of Colorado, Nebraska and Wyoming,
along with the Department of the Interior, signed a cooperative
agreement to develop a basin-wide program that would provide
measures to assist in the recovery of these four species in the
Platte River inside of Nebraska.
Last year the Platte River Recovery Implementation Program
agreement was signed by the Governors of the three states and
the Secretary allowing for program implementation to begin
January 1 of this year. The program assists in the recovery of
species and implements aspects of the recovery plans, thereby
providing compliance under the Endangered Species Act for
water-related activities and some new water-related activities.
Title I of H.R. 1462 provides authorization for the
Secretary of the Interior, through the Bureau of Reclamation,
to fully implement the program. It also provides Reclamation
with authority to appropriate nonreimbursable funds for the
program. Reclamation, in cooperation with the Governance
Committee, will implement the program in incremental stages
with the first increment being a period of 13 years.
Pursuant to the program agreement, the Federal cost share
for the first increment is $157 million. That is an indexed
amount. The state cost share is the same amount, to be provided
by the three state parties to the program agreement.
Pre-implementation activities such as forming the new
Governance Committee and various administrative functions have
already begun. Federal activities up to this point have been
authorized under existing law encouraging the Department to
work with the states to promote habitat protection.
Under the ESA, the program can initiate monitoring and
research activities. However, actual water and land
acquisitions cannot be initiated using Federal funds prior to
the enactment of this legislation. It is critical that
acquisitions begin early in the program to allow sufficient
time to evaluate the biological response and effectiveness of
the program's recovery measures.
Title II, as you have mentioned, authorizes Reclamation to
modify Pathfinder Dam, together with the State of Wyoming. No
Federal funds are required for this activity.
The Platte River Recovery Implementation Program is an
example of a partnership combining Federal and nonFederal
funding to recover endangered species while also meeting the
water needs of local communities, irrigators and power
generation. It is for these reasons that the Administration
supports H.R. 1462.
Madam Chairwoman, that completes my statement, and I am
happy to answer any questions you might have.
[The prepared statement of Mr. Peltier follows:]
Statement of Jason Peltier, Principal Deputy Assistant Secretary,
U.S. Department of the Interior
Madam Chairwoman and members of the subcommittee, I am Jason
Peltier, Principal Deputy Assistant Secretary for Water and Science at
the Department of the Interior. I appreciate the opportunity to appear
before you today to discuss H.R. 1462, the Platte River Recovery
Implementation Program and the Pathfinder Modification Authorization
Act. The Department supports passage of H.R. 1462.
The Platte River originates in the mountains of Wyoming and
Colorado and, as it flows through Nebraska, provides important habitat
for the whooping crane, piping plover, interior least tern, and pallid
sturgeon (target species) that are listed as threatened or endangered
under the Endangered Species Act (ESA). In 1997, the States of
Colorado, Nebraska, and Wyoming and the Department of the Interior
signed a Cooperative Agreement to develop a basin-wide program that
would provide measures to assist in the recovery of these four target
species in the Platte River in Nebraska. In late 2006, the Platte River
Recovery Implementation Program (Program) Agreement was signed by the
Governors of the three States and the Secretary of the Interior,
allowing for Program implementation to begin January 1, 2007. The
Program assists in the conservation and recovery of the target species
in the Platte River basin and implements aspects of the recovery plans
for these species, thereby providing compliance under the Endangered
Species Act (ESA) for existing water related activities and certain new
water-related activities in the Platte River Basin in Colorado,
Wyoming, and Nebraska.
Title I of H.R. 1462 provides authorization for the Secretary of
the Interior, through the Bureau of Reclamation, to fully implement the
Program. It also provides Reclamation with authority to appropriate
non-reimbursable funds for the Program. Reclamation, in cooperation
with the Governance Committee, will implement the Program in
incremental stages with the first increment being a period of 13 years.
Pursuant to the Program Agreement, the Federal cost share for the first
increment is $157 million (2005 dollars), plus indexing. The State
cost-share is the same amount, to be provided from the three State
Parties to the Program Agreement.
Pre-implementation activities, such as forming the new Governance
Committee, initiating the selection of the Executive Director, and
various administrative functions have already begun. Federal activities
up to this point have been authorized under existing law encouraging
the Department of the Interior to work with States to promote habitat
protection and the protection of species. Under the ESA, the Program
can initiate monitoring and research activities; however, actual water
and land acquisitions cannot be initiated using Federal funds prior to
enactment of this legislation. Upon enactment of this authorizing
legislation, Program land and water acquisitions will begin. It is
critical that acquisitions begin early in the Program to allow
sufficient time to evaluate the biological response and effectiveness
of the Program's recovery measures.
Title II authorizes the Secretary, through the Bureau of
Reclamation, to modify Pathfinder Dam and Reservoir and enter into
agreements with the State of Wyoming to implement this modification. No
Federal funds are required for this activity.
In accordance with our commitment to cooperative conservation, the
Department of the Interior seeks to encourage the efforts of States and
local communities to play active roles in managing the resources they
depend on for their livelihoods. The Platte River Recovery
Implementation Program that would be authorized under this Act is an
example of a partnership combining Federal and Non-Federal funding in
an ongoing effort to recover endangered species while also meeting the
water needs of local communities, irrigators, power generation, and the
environment. Enactment of this legislation provides an opportunity not
only to meet ESA requirements using a basin-wide, cooperative, and
scientific approach, but to do so in a manner that protects existing
water uses and allows for future water uses in the Platte River Basin.
For these reasons, the Administration supports H.R. 1462.
Madam Chairwoman, this completes my statement. I am happy to answer
any questions the Subcommittee may have.
______
Response to questions submitted for the record by Jason Peltier
Additional questions from Chairwoman Napolitano:
1. Exactly how does this bill resolve ESA issues? How does the record
of decision make the ESA process easier or more efficient? Will
implementation satisfy/fully comply with ESA in your opinion?
What if that doesn't work?
Exactly how does this bill resolve ESA issues?
Answer: The Platte River Recovery Implementation Program (the
Program) resolves ESA issues by providing regulatory certainty to water
users during the first increment of 13 years, in a manner that is
consistent with state water laws, compacts, and decrees. ESA compliance
measures for many existing water-related activities subject to section
7 of the ESA are provided by the Program's actions to improve habitat
and flow conditions. ESA compliance measures for new water related
activities are provided by the three State's and Federal depletion
plans.
How does the record of decision make the ESA process easier or more
efficient?
Answer: The existence of the Program does not alter the legal
requirement for federal agencies to consult with the Service if listed
species may be affected by their actions, and to offset impacts to
listed species and critical habitat occurring from such federal
actions. The Program's actions are intended to provide ESA compliance
measures that may be relied upon by federal nexus projects choosing to
participate in the Program and using the Program's actions or
Depletions Plans to offset impacts to target species and target species
critical habitat occurring from federal actions.
With a Program in place, ESA section 7 consultations for federal-
nexus projects and their effects to listed species will proceed in a
streamlined manner, and tier off the programmatic EIS and programmatic
biological opinion in subsequent NEPA analysis and biological opinions
for the specific federal action. The streamlined process includes: a) a
federal action agency determination that a project may affect listed
species and the initiation of an ESA consultation with the Service, b)
the effects to listed species in the Central and Lower Platte River
have been analyzed in the programmatic biological opinion, and c) the
Program's actions or Depletion Plans can be used as ESA compliance
measures for that project's effects to the target species in the Platte
River basin.
Will implementation satisfy/fully comply with ESA in your opinion?
Answer: Yes, implementation will fully comply with ESA requirements
for the first increment of 13 years. Although the National Research
Council of the National Academy of Sciences did not specifically review
the proposed Program, they did review and strongly support the
Service's habitat and flow recommendations and the Department's
conclusions on the interrelationships of sediment, flow, vegetation,
and channel morphology (Endangered and Threatened Species of the Platte
River, National Research Council 2005). The Program's habitat and flow
objectives during the first increment incorporate the Service's habitat
and flow recommendations.
What if that doesn't work?
Answer: The Program provides a Governance Committee of 10 members
representing the three States, water users, environmental groups,
Bureau of Reclamation, and the Service. If Program Milestones are not
being met, and the Service makes a preliminary determination that the
Program is not providing ESA compliance, the Service will notify the
Governance Committee in writing and request assistance in resolving the
situation. If the Governance Committee is unable to restore the ability
of the Program to provide ESA compliance, the Governance Committee
shall refer the matter to an Oversight Committee comprised of the
Secretary of the Interior and the three Governors to resolve the
situation. We anticipate that most issues will be resolved at the
Governance Committee level, before elevation to the Oversight
Committee.
2. Have studies been done on how climate change might affect runoff in
the basin and thus the success of the program? What effect
might climate change have on ESA compliance?
Answer: Due to the unavailability of basin-specific data on climate
change, this has not been studied specifically. However, Interior has
undertaken a large scale effort to examine scientific, operational and
legal (such as ESA implementation) issues in relation to climate
change. As this work matures, and as more focused data is gathered, we
expect the adaptive management nature of this program will be an
effective tool to deal with possible future scenarios.
3. How confident are you that you can curtail speculation during land
acquisition for this program? This has become a problem with
the Everglades restoration, is it possible it could happen with
the Platte program as well?
Answer: The price of land acquisition was addressed in Chapter 5 of
the Environmental Impact Statement. Page 5-303 states: Given the
general upward trend in prices, and given the Program must budget for
land leasing or purchases several years in advance (in order to obtain
funds through each state and Federal legislature), it seems unlikely
that the Program will ``lead'' land prices.
4. Sec. 105(a)(1) of the bill refers to Reclamation law and repayment
of project costs--can you explain what this means? What is
intended by this?
Answer: The language provides assurance that the Districts will not
be relieved of any existing repayment obligations, nor will they incur
any new obligations through the Program.
5. How many species of birds currently utilize this portion of the
Central Flyway?
Answer: The central Platte River provides critical migration
habitat for the endangered whooping crane, spring staging habitat for
80 percent of the world's sandhill crane population, breeding habitat
for the threatened piping plover and endangered least tern, and
migrational and wintering habitat for millions of waterfowl. Over 300
species of migratory birds have been observed along the Platte River,
and over 140 species are known to nest there. The Rainwater basin
immediately to the south, in combination with the Platte River,
provides for one of the world's greatest waterfowl migration
spectacles. Approximately 7-9 million ducks, 2-3 million geese, and
500,000 sandhill cranes annually stop in the area.
6. What is being done, aside from the Platte River Restoration, to
ensure the survival of these listed species along the Central
Flyway?
Answer: Currently, States and energy producers are involved in the
conservation of over 3000 acres along the Platte River to comply with
prior consultations or for mitigation required as part of FERC re-
licensing.
In addition to these conservation efforts, the Service and other
Federal agencies including the Army Corps of Engineers are engaged in
many activities to support the recovery of the listed species utilizing
the Central Flyway. Below is a summary of select activities.
Whooping Crane
The Service is working with a variety of partners and Canada to
protect and enhance breeding, migration, and wintering habitat for the
Aransas-Wood Buffalo population (AWBP) to allow the wild flock to grow
and reach ecological and genetic stability. The AWBP migrates annually
between the Aransas National Wildlife Refuge along the gulf coast of
Texas and Wood Buffalo National Park in the Northern Territories,
Canada.
Activities throughout the Central Flyway include:
1. Monitoring of population numbers, including annual recruitment
and mortality.
2. Monitoring of spring and fall migrations through the
Cooperative Whooping Crane Tracking Project.
3. Efforts to reduce mortality, including collisions with
powerlines and fences.
4. Education programs to increase competency of the public (e.g.,
hunters) for identifying whooping cranes and understanding their
protected status.
5. When necessary, discouraging whooping crane use of areas where
waterfowl disease outbreaks are underway or have recently occurred. A
Contingency Plan for Cooperative Protection of Whooping Cranes is
directed by the Canadian Cooperative Wildlife Health Centre in Canada
and the National Wildlife Health Center in the United States.
6. The Whooping Crane Health Advisory Team continues to provide
advice and recommendations to the Recovery Team on all health issues.
7. Studies of migratory habitat availability are being conducted
in several areas to maximize efficient habitat protection and monitor
habitat changes.
8. The Service's Partners for Fish and Wildlife Program works via
easements and management agreements with private landowners in the
Central Flyway to restore wetland habitats beneficial to migrating
cranes.
Efforts continue to reintroduce and establish two other self-
sustaining wild populations which are geographically separate from the
AWBP to ensure resilience of the species in case of catastrophic
events. These include a non-migratory population in Florida and a
migratory Wisconsin-Florida population. A captive breeding flock is
also maintained to protect against extinction and aid reintroduction
efforts.
Piping Plover and Interior Least Tern
Activities in support of survival and recovery include:
1. The Army Corps of Engineers' (Corps) operation of the Missouri
River and Kansas River reservoir systems is a significant effort to
manage, create and restore suitable riverine nesting habitat for piping
plovers and interior least terns in the Missouri River in North Dakota,
South Dakota and Nebraska.
2. Research studies of habitat requirements, species reproduction
and survival, and foraging ecology are being conducted by the USGS and
Virginia Polytechnic Institute. Information from these studies is being
used in the creation and management of emergent sandbar nesting habitat
in various reaches of the Missouri River.
3. The Corps has funded or conducted a monitoring program of least
tern and piping plover populations, reproduction and causes of nest
failure on various portions of the Missouri River since the late
1980's, and on the Kansas River for the last decade. This information
continues to be valuable in the identification of appropriate
management strategies.
4. The Tern and Plover Conservation Partnership (TPCP) (University
of Nebraska, Nebraska Game and Parks Commission, the Nebraska
Environmental Trust and the Service) cooperates with the sand and
gravel mining industry to protect least terns and piping plovers that
use nesting substrate on sand pits. TCPC conducts population surveys,
monitors reproduction, erects predator fencing and works with the
mining operators to maximize tern and plover reproduction and avoid
conflicts with mining operations.
5. A coordinated, multi-agency, range-wide population survey for
the northern Great Plains population of the piping plover has occurred
every five years since 1991. The first range-wide, coordinated survey
of the interior least tern population was conducted in 2005.
6. The Corps, Service, and various state, federal, and private
partners have established an Interior Least Tern Working Group to serve
as a clearing house for information and research on the interior least
tern, as well as develop a range-wide monitoring program to more
systematically track the status of the species.
7. State, federal and provincial wildlife agencies, and
environmental organizations such as The Nature Conservancy are involved
with recovery efforts for piping plovers using alkali lake breeding
habitat in the northern Great Plains. Management efforts include
population surveys, nest caging, predator removal and predator fencing,
and habitat management. Management efforts significantly improve fledge
rates on areas managed using these techniques.
8. The Service's Partners for Fish and Wildlife Program works with
private landowners to manage and protect nesting habitat for both
species.
7. The Bureau's NEPA Handbook is not on the website. Why is the
handbook missing from the website, how long has it been
missing, and why are there no previous versions there to
provide some kind of guidance for the public?
Answer: The guiding regulations for NEPA are the CEQ regulations
found at 40 CFR 1500 thru 1508. In addition, the NEPA process
requirements for DOI agencies are found at Part 516 of the Departmental
Manual, available at http://elips.doi.gov/app--dm/
index.cfm?fuseaction=home. 516 DM 14 applies specifically to the Bureau
of Reclamation.
The last Reclamation NEPA handbook is dated 1990. There was an
effort in 2000 to update the handbook and the draft was posted on
Reclamation's website in 2000 to seek comment. The 2000 draft is still
being finalized.
We plan to post the revised NEPA Handbook once finalized.
8. The Record of Decision states that the program will provide a means
to ensure that certain ``new water uses'' do not undermine ESA
compliance, and the program's habitat and species benefits.
What ``new water uses'' are contemplated? How will the program
adapt to these new water uses?
Answer: The Water Plan of the Implementation Program anticipates
the states may need to develop new water supplies to meet future
demands. ``New depletion plans'' are included by each state in the
program documents to outline plans for future storage. In addition, the
States are responsible for mitigating water supply effects created by
new storage projects.
9. Although there are guaranteed water quantities, how will water be
prioritized during a period of drought?
Answer: The water quantities identified in the Program (130,000--
150,000 AF for target species flows) are based on the annual average
flows. Annual operations are determined by the Environmental Account
manager with input by an Advisory Group and are dependent on water
availability and the conditions present that year.
Additional questions from Ranking Member McMorris Rodgers:
10. Can an outside group not party to the Platte River Program
(Program) referenced in the bill still file NEPA, ESA-related
or other litigation on existing federal projects that are
covered under the Program?
Answer: Implementation of the Program satisfies the federal
projects Endangered Species Act requirements. Third party rights to
file litigation are not impacted and they may file lawsuits.
11. A main element under this Program is to dedicate up to 150,000
acre feet to endangered species. Much of this water will be
taken from farmers and communities. Please provide specific
mitigation plans for these water losses?
Answer: During the first increment, as agreed to by all parties,
the Program will provide 130,000--150,000 AF of flows to meet the needs
of the target species. There are three projects that are contributed by
the States that will provide 80,000 AF of the flows and any effects
have been addressed by the States. The remaining 50,000--70,000 AF of
flows are to be developed by the Program. The Program will evaluate the
projects individually and effects identified will be addressed by the
Program.
12. The first phase of this Program and this bill's authority will
last 13 years. What quantifiable and numerical ESA recovery
goals are in the Program?
Answer: To achieve the Program's primary goal of improving and
maintaining migrational habitat for whooping cranes and reproductive
habitat for terns and plovers in the central Platte River area, a
combination of land and water actions will be implemented during the
first increment. These individual management actions will be designed
and implemented to gain the greatest understanding of the response of
the target species and their habitats to the actions through monitoring
and research. Analysis of information provided by the Adaptive
Management Plan may be used to change the initial characteristics of
habitat and/or guidelines contained in the Land and Water Plans that
were developed prior to Program implementation.
The ESA recovery goals are incorporated within ten Milestones that
provide for flow improvement and habitat restoration using a
scientific, adaptive management approach. The Milestones are also the
measure of ESA compliance during the first increment. The ten
Milestones are:
1. The Pathfinder Modification Project will be operational and
physically and legally capable of providing water to the Program by no
later than the end of year 4 of the first increment.
2. Colorado will complete construction of the Tamarack Phase I
Project and commence full Phase I operations by the end of year 4 of
the first increment.
3. Central Nebraska Public Power and Irrigation District and
Nebraska Public Power District will implement an Environmental Account
for Storage Reservoirs on the Platte System in Nebraska as provided in
the licenses for FERC Project Nos. 1417 and 1835.
4. The Reconnaissance-Level Water Action Plan, as may be amended
by the Governance Committee, will be implemented and capable of
providing at least an average of 50,000 acre-feet per year of shortage
reduction to target flows, or other Program purposes, by not later than
the end of the first increment.
5. The Land Action Plan, as may be amended by the Governance
Committee, will be implemented to protect and, where appropriate,
restore 10,000 acres of habitat by no later than the end of the first
increment.
6. The Integrated Monitoring and Research Plan, as may be amended
by the Governance Committee, will be implemented beginning year 1 of
the Program.
7. The Wyoming Future Depletions Plan, as may be amended by the
Governance Committee, will be operated during the first increment of
the Program.
8. The Colorado Future Depletions Plan, as may be amended by the
Governance Committee, will be operated during the first increment of
the Program.
9. The Nebraska Future Depletions Plan, as may be amended by the
Governance Committee, will be operated during the first increment of
the Program.
10. The Federal Future Depletions Plan, as may be amended by the
Governance Committee, will be operated during the first increment of
the Program.
Additionally, the Service prepared a ``Species Recovery Objectives
Report'' that identifies recovery objectives and by which progress
towards recovery of the species can be measured (Species Recovery
Objectives for Four Target Species in the Central and Lower Platte
River, June 2002).
13. How will the stakeholders define success or failure? How will
specific successes or failures be reported to the Natural
Resources Committee since the Program will need to be
reauthorized at some point?
Answer: The Program defines success during the first increment
using the Milestones discussed previously. At least annually, the
Program's management activities, and the criteria that guide those
Program activities, such as land and water acquisition and management
criteria, as described in the Program Document and its attachments
(e.g., Milestones Document, Land Plan, and Water Plan) will be
evaluated by the Governance Committee. Opinions of the Independent
Scientific Advisory Committee, and peer reviewers, if any, will be
compiled and summarized as part of the evaluation process. Evaluations
will:
1. Assess whether the Program activities and criteria being
examined are working as originally envisioned;
2. Make modifications based on new information;
3. Determine whether there are other or better uses for the
resources committed to the activity and criteria;
4. Consider available information, including any reviews from
advisory groups, to assess whether success or failure could be
determined by monitoring over the time period evaluated; and,
5. Develop alternative activities and criteria in accordance with
adaptive management principles.
Additionally, the Program Document (pages 19-20) describes the
evaluation of the first increment and development of any subsequent
increment:
At least three years before the end of the first increment, the
Governance Committee will develop a process and timeframe for
evaluating the first increment. The evaluation process will take into
account the need for FWS to carry out independent ESA assessments, NEPA
compliance, and other statutory obligations for a second Program
increment. These evaluations will include, but are not limited to the
following: (1) consideration of information gained through the
Integrated Monitoring and Research Plan and experience; (2) the
judgment of habitat managers, field biologists, and independent
experts; and (3) the results of peer review. The purpose of these
evaluations is to weigh whether Program goals, objectives, activities,
and criteria should be modified or should continue unchanged.
Before expiration of the first increment, the Governance Committee
will identify goals, objectives, activities and criteria, and
milestones or other measures for ESA compliance for a second Program
increment. Any decision to enter into a second increment will be made
by the signatories prior to expiration of the first increment.
14. Another Program element calls for 10,000 acres to be used for
recovering the species. Have these lands been identified? How
many are private? Is there a preliminary breakdown or plan of
lands that will be acquired by outright purchase, easement or
other means? What entity will own the lands that are purchased?
Answer: The Program has identified a 90 mile stretch along the
Central Platte for potential habitat development, and these lands are
primarily in private ownership. The specific parcels of land to be
acquired and the ratio of outright purchase to lease/easement
arrangements have not yet been determined.
The Program Document lays out a very detailed procedure for the
acquisition of lands needed for habitat development using a willing
seller/lessor approach. The Program Executive Director, working with
the Land Committee and private landowner representatives, will be
responsible for carrying out the acquisition of lands as described in
the Program document. Once lands are acquired, the program will assume
responsibility of operations and maintenance. Estimated costs
associated with O&M on acquired lands were considered during project
development and are part of the cost in the legislation.
The Program and the Governance Committee are not authorized,
however, to enter into contracts for the purchase, lease or receipt of
easements, or to acquire a land interest such as owning, leasing, or
receipt of easements for real estate, nor can they act as third-party
beneficiary of a trust, and it will be necessary to appoint a ``Land
Interest Holding Entity'' for such purposes in order to implement the
Land Component of the First Increment of the Program. A non-profit
``Land Interest Holding Entity'' will hold title in trust for the
benefit of Nebraska, Wyoming, Colorado, and the Department of the
Interior.
15. What assurances can you give that nearby rural communities won't
experience negative impacts associated with federal land
acquisition, land being taken out of production or increased
land rents and values for young farmers?
Answer: The Program policy requires that all land and water
obtained for the project will be from willing sellers or willing
lessors. No land condemnation will be used in the first increment of
the program (see Final EIS 5-277). In addition, the ``Good Neighbor
Policy'' included in the plan provides that impacts on other land
owners are addressed in the acquisition process.
16. Could ESA water needs under this Program trump the Modified North
Platte Decree and State Water law?
Answer: The Program is structured such that providing water to meet
ESA needs is done in a manner that complies with the Modified Decree
and State Water law.
______
Mrs. Napolitano. Thank you, sir.
Members, do you have questions? Yes, Mr. Smith?
Mr. Smith. Thank you.
A main element under this program is to dedicate up to
150,000 acre feet to endangered species, and much of this water
will be taken from farmers. What plans does the Department have
to mitigate for these water losses?
Mr. Peltier. You know, I could provide the information that
is written in front of me, but the guys with the genetic
understanding of it are sitting right next to me, and maybe it
would be best if I turn to the Bureau and the Fish and Wildlife
Service to discuss that.
Mrs. Napolitano. Would you kindly identify yourself?
Mr. Ryan. Yes. Madam Chairwoman and members of the
Subcommittee, my name is Mike Ryan. I am the Regional Director
for the Great Plains Region of the Bureau of Reclamation.
The program envisions water acquisition activities from
willing sellers, a willing buyer/willing seller concept. Some
of the water projects will be taken in the various states.
Reclamation's most direct involvement in that will be under
Title II and modification along with the State of Wyoming of
Pathfinder Dam.
Mr. Smith. I mean, certainly conservation and land
retirements are part of the solution. Any plans for new
projects or looking at new storage opportunities?
Mr. Ryan. Congressman, there are several activities that
have been identified that would be in some sense of the word a
new water project; for instance, a modification of existing
facilities or the development of groundwater programs.
Those are laid out in detail in our programmatic documents
that accompanied the environmental documentation for the
program.
Mr. Smith. Groundwater projects or programs you said? Did I
hear you correctly?
Mr. Ryan. Yes, sir.
Mr. Smith. OK. Thank you. Thank you.
Mrs. Napolitano. Yes, Mr. Udall?
Mr. Udall. Madam Chair, just briefly I want to thank Mr.
Peltier for his testimony and for his focus on this important
concern.
I also want to add an additional comment to the record. I
neglected to mention that Congressman Salazar was an original
cosponsor, and, interestingly enough, his district contains the
headwaters of the North Platte. You wouldn't think that to be
the case initially when you looked at the map, but because of
the circuitous route the Platte follows his district includes
those headwaters. He joined me from the very beginning.
I did want to thank my colleague from western Nebraska, Mr.
Smith, for joining us at the beginning of this important
initiative. He has been a marvelous colleague just in the few
months he has been here, and he has a very difficult set of
shoes to fill because Congressman Tom Osborne was his
predecessor.
It will be a delight when I talk to Tom, as I do
periodically, to tell him we are moving ahead on this because
Tom was a real stalwart advocate of getting this completed as
well. Thank you, Congressman Smith.
I yield back.
Mrs. Napolitano. Thank you, sir.
Mr. Baca?
Mr. Baca. Thank you very much. We are breaking in Mr. Smith
on the basketball court. Madam Chair, thank you very much for
having this hearing.
I have a question for Jason. To what extent will you be
monitoring the actual release, as well as success of recovering
species?
Mr. Peltier. Let me take an initial shot, and then my
colleagues can fill in.
Like many of the other large-scale ecosystem restoration
programs across the west that we are in the process of
constructing or implementing, the reality is there is
uncertainty that we must deal with, and central to dealing with
that uncertainty is extensive monitoring, learning and
responding and modifying our behavior based on what we learn,
if needed.
It will be extensive, and a lot of time and energy has gone
into recognizing the need for an effective monitoring program.
Mr. Baca. OK. The next question is will the expansion of
the Pathfinder Dam back the full pull of the reservoir up north
to the Platte River, which is question number one, and then,
two, what will be the consequences of that, and does the Bureau
already own the land that would be inundated?
Mr. Peltier. Yes, the Bureau does either have title to or
has flowage easements for all the ground that would be
potentially inundated.
Mr. Baca. Thank you very much, Madam Chair. I yield back
the balance of my time.
Mrs. Napolitano. Thank you.
Mr. Peltier, how does the program define success, and how
do you know whether the program is really working?
Mr. Peltier. The first increment of success is peace I
would say. We have achieved that, and we hope that will hold
and that as the planning efforts and the implementation efforts
go forward that it is in full partnership with everybody that
is engaged.
That is a valuable, in and of itself, accomplishment
because it is so much more constructive, productive. There is
such a greater return on your effort when you are operating in
that kind of an environment with partners rather than a
regulatory process or litigation.
Of course, the ultimate measure of success will be years
down the road when we have implemented. As we modify and
continue to learn and improve habitat for species, the
indicators are quite simple in my mind. It is health of the
species and health of the economy, economies that are
associated with and affected by the program.
Mrs. Napolitano. And do you have any reasonable expectation
that is going to happen within 5, 10, 15 years?
Mr. Peltier. I think why doesn't somebody that is----
Mr. Butler. Madam Chairwoman, my name is Mark Butler. I am
a staff level employee with the Fish and Wildlife Service and
have been involved in this effort since its inception and
primarily function as the lead contact with the Platte River
Governance Committee.
As far as success, the program has identified 10 milestones
or 10 major action areas that will define success not only in
terms of the species' recovery, but in terms of Endangered
Species Act compliance.
Of those 10 milestones, the first three address what we
term the three initial program projects, the Pathfinder
Modification Project being one of those, the other in Colorado,
one in Nebraska at Lake McConaughy.
And then the provision through willing seller arrangements,
willing lessor arrangements, to obtain additional water
supplies for the program. That is the fourth milestone. The
fifth milestone is working on the program's land action plan to
obtain 10,000 acres of suitable habitat.
The sixth milestone Mr. Peltier mentioned in terms of the
integrated monitoring and research plan and the adapted
management plan, which is the vehicle where we monitor the
reaction or the response of the species to these management
actions and use that increased understanding to adjust and
guide our further management actions.
The last four milestones have to do with the three states
and the Federal government's efforts to address the effects of
new water-related activities on the species and so those 10
milestones are pretty much the 10 fundamental portions of the
program that provide Endangered Species Act compliance and also
focus directly on the species.
In addition, this same question was asked of the Fish and
Wildlife Service early on during the negotiations as to how
will we know when is enough? How do we know when we have gotten
there?
There are recovery plans that the Service has prepared for
each species, and we specifically stepped those down or
identified, based upon our understanding at this time, the
desired distribution and number of species targeted for the
Central Platte Region.
Mrs. Napolitano. Thank you.
Section 102 of H.R. 1462 appears to make this program
discretionary by stating that the Secretary may participate and
carry out the program. What happens if the bill isn't
implemented fully because the Secretary chooses not to
implement it?
Mr. Peltier. Well, I don't want to get into a semantical
discussion, but in very practical terms the Secretary of the
Department and the Administration have committed to the program
and have signed the paper and made the pledge of going forward.
If the legislation is passed, the legislation will be
followed and the program will be implemented. Who can predict
the future though. Everybody has a way out one way or another
in these things.
Mrs. Napolitano. Well, the reason I ask that question is
because I know one program that is in law and has been ignored.
I am talking about water recycling. That kind of leads me to
making sure that we are in line to make sure that it is going
to happen, that we are fully participating.
Thank you. Any other questions?
[No response.]
Mrs. Napolitano. If no other questions, I would like to
ask, Mr. Peltier, if you would mind hanging around a little
bit. There may be questions from the panel.
Mr. Peltier. Yes. I intend to sit through the entire
hearing.
Mrs. Napolitano. Thank you very much.
We will proceed with the questioning of the second panel.
Again, we will hear from them, including Alan Berryman of the
Northern Colorado Water Conservancy District; Ann Bleed of the
Nebraska Department of Natural Resources; Ted Kowalski of the
Colorado Conservation Board; Dan Luecke, Platte River Issues
Consultant to the National Wildlife Federation; and, finally,
last but not least, Mike Purcell of the Wyoming Water
Development Commission.
As soon as you are settled, gentlemen, Mr. Berryman, you
may begin.
STATEMENT OF ALAN BERRYMAN, ASSISTANT GENERAL MANAGER,
ENGINEERING DIVISION, NORTHERN COLORADO WATER CONSERVANCY
DISTRICT
Mr. Berryman. Thank you, Madam Chair and members of the
Subcommittee. My name is Alan Berryman. I am the Assistant
General Manager for the North Colorado Water Conservancy
District in Berthoud, Colorado. Thank you for inviting me today
to testify in front of the committee on House Bill 1462.
The Platte River Recovery Implementation Program is a
cooperative, basin-wide solution created to resolve escalating
conflicts between water use and endangered species protection.
These conflicts arise during Federal permitting of both
existing and planned irrigation and municipal water supply
projects in the Platte River basin.
Such endangered species issues in the Central Platte River
are of particular concern to Northern Water and other Colorado
water users in the South Platte River basin. Resolution of
these conflicts is of state interest and is important to all
who live and work in Colorado's rapidly growing Front Range.
Northern Water is requesting your support of House Bill
1462 to authorize the Secretary of the Interior to participate
in and provide funding toward the Platte River Recovery
Implementation Program for threatened and endangered species in
the Central and Lower Platte in Nebraska and to modify the
Pathfinder Dam and Reservoir in Wyoming.
Northern Water is the contract beneficiary of water yielded
from the Colorado-Big Thompson Project, which is the largest
transmountain water diversion projection in Colorado. The C-BT
Project annually delivers about 213,000 acre feet of water to
northeastern Colorado as a supplemental water supply to 32
cities and towns and approximately 700,000 acres of irrigated
farmland in northeastern Colorado.
To continue to meet the growing water demands along
Colorado's Front Range, Northern Water is also involved in new
regional water planning activities and projects, including the
Northern Integrated Supply Project, sometimes called NISP, that
is currently working through the Federal permitting process.
That project is designed to develop 40,000 acre feet of water
for 16 water providers located within Northern's boundaries.
Whether it is a reliable, time-proven water supply project
like the C-BT Project or an anticipated new project like NISP,
both must comply with Endangered Species Act requirements to
continue to provide historically relied upon water supplies or
to obtain the necessary Federal permits that allow the
development of new water supply for Colorado's rapidly growing
population.
Recent studies completed by the Colorado Water Conservation
Board to assess future urban water supply needs in the state
show that the population within Colorado's South Platte River
basin is anticipated to grow by 65 percent from the year 2000
to the year 2030.
To meet the demands from that growth, water providers in
the region will have to develop more than 400,000 acre feet of
water in a basin that is already over appropriated. This will
require significant additions to water infrastructure such as
pipelines and reservoirs, which in turn will require compliance
with ESA to permit their construction.
Northern Water sincerely believes that the Platte River
Recovery Implementation Program is the best available solution
to address the species' needs under the ESA and also allow the
continued use and development of water in the three states that
share the Platte River basin.
Northern Water has been involved in the program since
negotiations began in 1994 on behalf of itself and other
Colorado water users. During the 12-year negotiation period,
Northern Water was a member of the Platte River Project, which
was a group of more than 25 water user and water supply
organizations in the South Platte basin in Colorado that worked
collaboratively with the State of Colorado to help craft the
program.
Currently, Northern Water is a member of the board of
directors of the South Platte Water Related Activities Program,
sometimes called SPWRAP, a Colorado nonprofit corporation
recently formed to replace the Platte River Program group and
represent the interests of Colorado water users who will be
participating in the program.
SPWRAP has signed a memorandum of understanding with the
State of Colorado which commits SPWRAP to work with the State
of Colorado in meeting Colorado's obligations under the
program. SPWRAP membership is currently growing daily, and we
expect the majority of municipalities and many ag entities will
become members of SPWRAP.
Northern Water has also allowed me to serve as the Colorado
water user representative on the program's Governance Committee
as a commitment to continue to move the program forward for the
benefit of the species and the water users.
Northern Water has been and remains committed to developing
and implementing a cooperative, basin-wide solution that
resolves conflicting water use and ESA issues. This program
will provide the regulatory compliance under the ESA for both
existing and prospective new water uses within the Platte River
basin and will help protect and ensure the future for water
users and the endangered species.
However, the program can only be successful if it is
adequately funded. We respectfully request the support and the
assistance of this Subcommittee to authorize and fund this
vitally important program.
Again, thank you for allowing me to testify in front of the
Subcommittee.
[The prepared statement of Mr. Berryman follows:]
Statement of Alan D. Berryman, Assistant General Manager,
Northern Colorado Water Conservancy District
Madam Chair and Members of the Subcommittee:
My name is Alan Berryman. I am Assistant General Manager for the
Northern Colorado Water Conservancy District (``Northern Water'') in
Berthoud, Colorado. Thank you for inviting me to testify before you in
support of the Platte River Recovery Implementation Program and
Pathfinder Modification Authorization Act. The Platte River Recovery
Implementation Program (``Program'') is a cooperative, basin-wide
solution created to resolve escalating conflicts between water use and
endangered species protection. These conflicts arise during federal
permitting of both existing and planned irrigation and municipal water
supply projects in the Platte River basin. Such endangered species
issues in the central Platte River are of particular concern to
Northern Water and other Colorado water users in the South Platte River
basin. Resolution of these conflicts is of state interest and is
important to all who live and work along Colorado's rapidly growing
Front Range. Northern Water is requesting your support for H.R. 07-1462
to authorize the Secretary of the Interior to participate in and
contribute funding toward the Platte River Recovery Implementation
Program for Threatened and Endangered Species in the Central and Lower
Platte River basin in Nebraska, and to modify the Pathfinder Dam and
Reservoir in Wyoming.
Northern Water is the contract beneficiary of water yielded from
the Colorado-Big Thompson (``C-BT'') Project, which is the largest
transmountain water diversion project in Colorado. The C-BT Project
annually delivers about 213,000 acre-feet of water to northeastern
Colorado as a supplemental water supply to 32 cities and towns and
approximately 700,000 acres of irrigated farmland in northeastern
Colorado. To continue to meet the growing water demands along
Colorado's Front Range, Northern Water is also involved in new regional
water planning activities and projects, including the Northern
Integrated Supply Project (``NISP'') that is currently working through
the federal permitting process. That proposed project is designed to
develop 40,000 acre-feet of water for 16 water providers located within
Northern Water's boundaries.
Whether it is a reliable, time-proven water supply project like the
C-BT Project or an anticipated new project like NISP, both must comply
with the Endangered Species Act (``ESA'') requirements to continue to
provide historically relied-upon water supplies, or to obtain the
necessary federal permits that allow the development of a new water
supply for Colorado's rapidly growing population. Recent studies
completed by the Colorado Water Conservation Board to assess future
urban water supply needs in the state show that the population within
Colorado's South Platte River basin is anticipated to grow by 65
percent from the year 2000 to the year 2030. To meet the demands from
that growth, water providers in the region will have to develop more
than 400,000 acre-feet of water in a basin that is already over-
appropriated. This will require significant additions to water
infrastructure such as pipelines and reservoirs which, in turn, will
require compliance with ESA to permit their construction. Northern
Water sincerely believes that the Platte River Recovery Implementation
Program is the best available solution to address the species' needs
under the ESA and also allow the continued use and development of water
in the three states that share the Platte River basin.
Northern Water has been involved in Program negotiations since 1994
on behalf of itself and other Colorado water users. During the 12-year
negotiation period, Northern Water was a member of the Platte River
Project (``PRP''), a group of more than 25 water user and water supply
organizations in the South Platte River basin in Colorado that worked
collaboratively with the State of Colorado to help craft the Program.
Currently, Northern Water is a member of the Board of Directors of the
South Platte Water Related Activities Program, Inc. (``SPWRAP''), a
Colorado non-profit corporation recently formed to replace the PRP
group and represent the interests of Colorado water users who will be
participating in the Program. SPWRAP has signed a Memorandum of
Understanding with the State of Colorado which commits SPWRAP to work
with the State of Colorado in meeting Colorado's obligations under the
Program. SPWRAP membership is currently growing daily, and we expect
that the majority of municipalities and many agricultural entities will
become members in SPWRAP. Northern Water has also allowed me to serve
as the Colorado water user representative on the Program's Governance
Committee as a commitment to continue to move the Program forward for
the benefit of the species and the water users.
Northern Water has been, and remains, committed to developing and
implementing a cooperative, basin-wide solution that resolves
conflicting water use and ESA issues. This Program will provide the
regulatory compliance under the ESA for both existing and prospective
new water uses within the Platte River basin and will help protect and
ensure the future for water users and the endangered species. However,
the Program can only be successful if it is adequately funded. We
respectfully request the support and assistance of this Subcommittee to
authorize and fund this vitally important program. Again, thank you for
allowing me to testify before this Subcommittee today.
______
Response to questions submitted for the record by Alan Berryman
Additional questions from Ranking Member McMorris Rodgers:
Can an outside group not party to the Platte River Program (Program)
referenced in the bill still file NEPA, ESA-related or other
litigation on existing federal projects that are covered under
the Program?
Yes, outside groups that are not party to the Program could file a
NEPA or ESA lawsuit, or file other litigation regarding existing
federal projects that are covered under the Program.
A main element under this Program is to dedicate up to 150,000 acre
feet to endangered species. Much of this water will be taken
from farmers and communities. Please provide specific
mitigation plans for these water losses?
The Program's overall Water Plan includes the original three state
projects (the environmental account in Nebraska's Lake McConaughy,
Pathfinder Reservoir in Wyoming, and the Tamarack Plan in Colorado) and
additional individual water projects identified for possible future
development under the Water Action Plan. Individual water projects
developed under the Water Action Plan would provide water that would be
leased by the Program or otherwise compensated for as in the case of
power interference and would not take water from existing water users.
Colorado's state-sponsored water contribution under the Program
(the Tamarack Plan) focuses upon retiming water legally available to
Colorado that would otherwise exit the state unused by Colorado water
users and at times of no shortage to species' target flows. This water
would be diverted under the circumstances listed in the preceding
sentence and, through artificial recharge operations, would return to
the river at times when the target species are experiencing shortages
to the FWS' target flows. (See Program Attachment 5, Section 3--
Colorado's Initial Water Project). Most diversions would occur in the
non-irrigation season and at locations below existing Colorado
reservoirs that divert during that season.
Depending upon their needs, Colorado may also elect to lease
additional water from farmers on a ``willing lessor/lessee'' basis.
Leased water would meet the same criteria listed above, would provide
farmers with a potential source of income, and no mitigation would be
necessary.
The first phase of this Program and this bill's authority will last 13
years. What quantifiable and numerical ESA recovery goals are
in the Program?
The Program does not have numerical recovery goals for species
populations. The Program goals include: (1) improving and maintaining
migrational habitat for whooping cranes and reproductive habitat for
least terns and piping plovers; (2) reducing the likelihood of future
listings of other species found in the area; and (3) testing the
assumption that managing flow in the central Platte River also improves
the pallid sturgeon's lower Platte River habitat. The specific habitat
objective that is listed in the Program's milestones is to protect and,
where appropriate, restore 10,000 acres of habitat by the end of the
first increment of 13 years.
The Program provides for an adaptive management plan (AMP) to
monitor habitat responses to the management of Program resources.
Because there is disagreement on relationships between resource
management and the expected outcomes, the AMP is designed to test
specific hypotheses associated with these relationships to reduce the
level of disagreement and to improve management of Program resources.
The AMP includes the appropriate tests during the first increment to
evaluate the results associated with goals 1 and 3 above.
How will the stakeholders define success or failure? How will specific
successes or failures be reported to the Natural Resources
Committee since the Program will need to be reauthorized at
some point?
Interim successes and failures associated with the Program will be
identified through implementation of the AMP as hypotheses are tested,
through achievement of the Program milestones, and through continued
regulatory certainty for water users during the first increment of the
Program.
Another Program element calls for 10,000 acres to be used for
recovering the species. Have these lands been identified? How
many are private? Is there a preliminary breakdown or plan of
lands that will be acquired by outright purchase, easement or
other means? What entity will own the lands that are purchased?
Specific lands to be included in the Program are not identified.
The vast majority of acres potentially useful to the Program are most
likely privately owned. The method to secure the habitat lands requires
that lands must be acquired on a willing lessor/seller/grantor basis
and that those interests may take the form of fee purchase, easement or
long term leases, depending upon the available opportunities. The
optimum Program scenario would be for the 10,000 acres to be included
in 3 habitat complexes of about 3000 contiguous acres each and some
other lands not within the 3 habitat complexes. That scenario will be
extremely difficult to make happen given the available monetary
resources and constraints on acquiring lands. A land interest holding
entity is being created under the Program to hold the land interests of
the Program.
What assurances can you give that nearby rural communities won't
experience negative impacts associated with federal land
acquisition, land being taken out of production or increased
land rents and values for young farmers?
The interests in land for the Program will be held by the land
interest holding entity, not by the federal government. Land interests
will be acquired on a voluntary basis and the Program has committed to
a ``good neighbor policy'' regarding Program lands, including payments
in lieu of taxes.
Could ESA water needs under this Program trump the Modified North
Platte Decree and State Water law?
The Program is designed to facilitate water uses consistent with
entitlements under State Water Law, interstate compacts, the Modified
North Platte Decree, and endangered species needs. The bigger question
is, without the Program, could ESA implementation trump interstate
compacts and decrees and the exercise of water rights decreed under
state law. This question is difficult to answer and, ultimately, may
only be answered by a specific lawsuit. There are some that believe
that the ESA could require individual actions by water users to
mitigate species' needs that may be perceived as ``trumping'' state
water law or a water compact. It is an issue that water users in
Colorado are concerned about. During negotiations, the Colorado
contingency designed their water plan to avoid raising that question.
______
Mrs. Napolitano. Thank you, Mr. Berryman.
We will move on to Ms. Bleed.
STATEMENT OF ANN BLEED, EXECUTIVE DIRECTOR,
NEBRASKA DEPARTMENT OF NATURAL RESOURCES
Ms. Bleed. I want to thank the committee for inviting me to
testify today. My name is Ann Bleed. I was appointed by
Governor Heineman as the Director of the Department of Natural
Resources in Nebraska.
I have submitted written testimony, but I would like to
emphasize a few highlights of why this program is important to
Nebraska.
We see this program as a way to provide habitat for
endangered species, as well as a large number of other species
that rely on the Platte River, including migratory waterfowl
and sandhill cranes, and at the same time comply with the
Endangered Species Act and provide regulatory certainty for all
our water users in Nebraska, and finally, and importantly, to
avoid costly litigation over endangered species issues.
The program establishes an organizational structure that
will I believe ensure appropriate state, Federal and
stakeholder involvement in the implementation of the program.
The program uses an incremental approach to implementing the
program that will rely on sound science developed through an
adaptive management program.
An adaptive management program will test the hypotheses and
the management activities that we are using and help ensure
that the commitment of resources being made by everybody in the
Federal government, as well as the states and the stakeholders
in the states, will in fact achieve the outcomes that we want
out of the program.
The states and other interests in each of the states have
committed substantial amounts of time, money, land and water
resources to the program. They have done a lot to date, and the
program will call for more commitments. In addition, the states
have agreed to cut back existing uses to the 1997 level of
consumptive use. This also will be a costly endeavor on our
water users.
In sum, the negotiations to develop the program were long
and arduous. The time, land, water and financial commitments by
the states, the water and power districts in the states,
environmental interests and the people of each basin were very
substantial. There are lots of future challenges that the
program must overcome.
However, when the Governors of each state signed onto the
program they attested to the premise that this cooperative and
collaborative program will provide a much higher likelihood of
achieving protection for the habitat, as well as for providing
regulatory certainty for our users than any other alternative.
For this reason, I urge you to enable the Federal
government to be a partner in this collaborative effort. Thank
you.
[The prepared statement of Ms. Bleed follows:]
Statement of Ann Bleed, Director of the
Nebraska Department of Natural Resources
My name is Ann Bleed. I am the Director of the Nebraska Department
of Natural Resources and am Nebraska Governor David Heineman's
representative on the Governance Committee of the Platte River Recovery
Program.
Thank you for this opportunity to provide testimony in support of
Senate Bill 752 (House Resolution 1462) and its authorization of the
Platte River Recovery Implementation Program.
The Platte River system arises in the mountains of Colorado and
Wyoming, crosses the State of Nebraska, and empties into the Missouri
River on Nebraska's eastern border. The Platte River and its
tributaries irrigate millions of acres of farmland, provide water to
cities such as Denver, Colorado, Casper, Wyoming, Lincoln and Omaha
Nebraska, as well as numerous smaller cities and towns, and provide
water for power plants that provide power throughout the western United
States.
The Platte River in Nebraska also provides critical habitat to the
endangered or threatened whooping crane, least tern, piping plover and
pallid sturgeon, as well as habitat for numerous other species, and is
a major staging area for migrating sandhill cranes. In the1990's the
State of Nebraska granted instream flow permits to protect fish and
wildlife habitat along the Platte and put a moratorium on the issuance
of new surface water permits on the western two-thirds of the Platte
River and its tributaries.
Nevertheless, the importance of this river for so many competing
interests led to conflicts not only among these interests, but also
among the three states through which it flows. Exacerbating these
conflicts was the need to comply with the federal Endangered Species
Act. In an attempt to avoid costly litigation in 1994 the three states
and their constituents and the U.S. Department of Interior signed a
Memorandum of Understanding that after thirteen years of intense
negotiations developed and approved the Platte River Recovery
Implementation Program.
The goal of the Program is to use a basin-wide cooperative approach
to assist in the conservation and recovery of habitat for the Platte's
endangered and threatened species and help prevent the need to list
more basin associated species pursuant to the Endangered Species Act,
while at the same time provide regulatory certainty to the people and
industries that also rely on the flows of the river.
The Program has established an organizational structure that will
ensure appropriate state and federal government and stakeholder
involvement in the implementation of the Program. The Program will
utilize an incremental approach to land and water management that
places an appropriate and heavy reliance on the development of sound
science through an adaptive management program. This adaptive
management program has developed extensive protocols for testing
hypotheses and management techniques to insure that the efforts of
program participants will produce the desired results.
The States and other interests in the basin have committed
substantial resources to the success of this effort including $30 M,
major land contributions and an average of 80,000 acre-feet of water.
In addition each state has committed to reduce their consumptive use of
water to 1997 levels and implement administrative procedures to hold
water use at this limit.
Before closing I would like to address an amendment to Senate Bill
752 and House Resolution 1462 that has been proposed on behalf of the
Upper North Platte Water Users in Wyoming relating to the Pathfinder
Modification Project, which is part of the Platte River Recovery
Implementation Program. The Bureau of Reclamation has a Wyoming water
right to store 1,070,000 acre feet of water in Pathfinder Reservoir for
the benefit of the North Platte Project, which includes irrigated land
in Eastern Wyoming and Western Nebraska. Over the years, 53,493 acre
feet of the storage capacity of the reservoir have been lost to
sediment. The Pathfinder Modification Project would recapture this
storage space.
The administration of the water rights for using this recaptured
space was the subject of much negotiation among the United States and
the States of Colorado, Nebraska, and Wyoming, all of whom were parties
to the settlement of the Nebraska v. Wyoming law suit, which was
approved by the U.S. Supreme Court in November, 2001. The results of
these negotiations were codified in Appendix F to the Final Settlement
Stipulation This appendix, which establishes the terms and conditions
under which the Pathfinder Modification Project will be operated states
in part:
The recaptured storage space would store water under the
existing 1904 storage right for Pathfinder Reservoir and would
enjoy the same entitlements as other uses in the reservoir with
the exception that the recaptured storage space could not place
regulatory calls on the existing water rights upstream of
Pathfinder Reservoir other than the rights pertaining to
Seminoe Reservoir.
The proposed amendment suggests that the Bureau of Reclamation
should be restricted from seeking water rights administration on behalf
of Pathfinder Reservoir during the irrigation season. It is Nebraska's
view that the restrictions on calls for regulation for Pathfinder
Reservoir during the irrigation season in the proposed amendment would
be in violation of the Modified North Platte River Decree.
In summary, the negotiations to develop this program were long and
arduous. The time, land, water and financial commitments by the States,
water and power districts, environmental interests and the people in
the basin are very substantial. There are a lot of future challenges
that the Program must overcome. However, when the Governor's of all
three States signed the Program agreement, the States attested to the
premise that cooperation and collaboration will provide a much higher
likelihood of protecting habitat and providing regulatory certainty for
all involved than any other alternative. For this reason I urge you to
enable the federal government to be a partner in this collaborative
effort.
Thank you again for this opportunity to provide testimony.
______
Response to questions submitted for the record by Ann Bleed
Additional questions from Chairwoman Napolitano:
1. What are the current Central Platte conditions? Are there any areas
where the river is dry or almost dry? Where are those areas if
they exist?
The Platte River above Columbus, Nebraska, upstream of the
confluence of the Platte River and the Loup River in the eastern
portion of the State, is characterized by highly variable flows,
variable from year to year and from one season of the year to another.
Before the construction of major reservoirs on the Platte system, the
river would have high flows in March and April, and May and June due to
the melting of the snow, first in Nebraska and then in the Rocky
Mountains. During the summer it would often go dry. With the
construction of reservoirs and the diversions of water for irrigation,
the extreme high spring flows were decreased but the summer flows
increased. As a result, except for dry years, the river rarely was dry,
even during the summer. However, during the last six years of drought,
the river was often dry between Kearney, Nebraska and Columbus
Nebraska, upstream of the confluence with the Loup River.
Will there be flow surges that affect downstream users? Will the
increase in flows increase the likelihood of flooding
downstream?
I am assuming this question pertains to the release of water from
the environmental account in Lake McConaughy to maintain habitat for
the endangered and threatened species. The Program is designed to avoid
flood flows that would result from Program activities. The Final
Program Document states on page 16 that:
Any such use of Program water is subject to limitations
described in the document ``An Environmental Account for
Storage Reservoirs on the Platte River System in Nebraska'' (EA
Document) in the Program Water Plan (Attachment 5, Section 5)
to prevent such releases from causing or exacerbating floods.
Page 47 of the Water Plan also states:
The EA Manager may not request releases from the EA when the Platte
or North Platte River at Keystone, North Platte, Brady, Cozad, Kearney
or Grand Island is at or above flood stage as defined for those
locations by the National Weather Service (``NWS''). If the EA Manager
requests a release of EA water that the Districts believe would cause
the Platte or North Platte River to rise above flood stage, the request
for release may be denied. However, the EA Manager may appeal the
denial by requesting the National Weather Service (NWS) to make a
determination as to whether or not the requested release would cause
either of the rivers to rise above flood stage at any of the previously
listed sites. If the NWS determines the requested release would cause
either of the rivers to rise above flood stage, the denial would stand.
If the NWS determines the requested release would not cause either of
the rivers to rise above flood stage, the requested releases will be
made.
Additional questions from Ranking Member McMorris Rodgers:
1. Can an outside group not party to the Platte River Program
(Program) referenced in the bill still file NEPA, ESA-related
or other litigation on existing federal projects that are
covered by the Program.
Any person could file a lawsuit at any time. The question is what
would the courts do with do with a lawsuit regarding issues covered by
the Program? The Program has been deemed a reasonable and prudent
alternative for complying with Section 7 of the Endangered Species Act
(ESA). Thus, I would think that the court would give deference to the
Program, but there are no guarantees.
2. A main element under this Program is to dedicate up to 150,000 acre
feet to endangered species. Much of this water will be taken
from farmers and communities. Please provide specific
mitigation plans for these water losses?
The Program was developed to provide a reasonable and prudent
alternative to protect endangered species and comply with Section 7 of
the ESA while at the same time provide regulatory certainty for water
users. According to the U.S. Fish and Wildlife Service, the shortage of
water for maintaining habitat for the endangered species is over
417,000 acre feet a year on average. Under the Program we were able to
agree to providing only 130,000 to 150,000 acre feet in the first 13-
year increment, pending further information gathered through the
adaptive management program. This is the main plan to mitigate impacts
on farmers and communities.
Also, under the Program, the Nebraska public power districts are
providing up to 200,000 acre feet of storage space and 10% of the
storable inflows to the reservoir October through April for the
environmental account in Lake McConaughy, Wyoming is providing 34,000
acre feet of storage space and 3.18% of inflows through the Pathfinder
Modification Project, and Colorado is providing for the reregulation of
water through the Tamarack Project that will store water excess of the
target flows for later release when flows are below the target flows
for the endangered species. Although these projects do have impacts on
water users, the impacts on farmers and communities would be worse
without these projects.
The State of Nebraska has also developed a Conservation and Reserve
Program and an Environmental Quality Incentive Program with the federal
government to, on a voluntary basis, lease water rights for 10 to 15
years or permanently retire water rights to reduce the consumptive use
of water and provide habitat.
The State is also appropriating up to $ 80 million over 12 years
for reducing consumptive use in overappropriated and fully appropriated
basins with the Platte River Basin being one of the prime targets for
the use of this money.
3. The first phase of this Program and this bill's authority will last
13 years. What quantifiable and numerical ESA recovery goals
are in the Program?
The Program's progress will be monitored through an intensive
adaptive management program. This adaptive management program is a
collaborative initiative among many scientists involved in the Program.
The purpose is to develop and test hypotheses regarding what habitat
and management activities will in fact improve the continued survival
of the endangered species.
The Programs has also established 10 milestones to monitor progress
toward Program objectives for ESA compliance through the first
increment of the Program. The milestones, which are explained more
fully in Attachment A are:
1. The Pathfinder Modification Project will be operational and
physically and legally capable of providing water to the Program by no
later than the end of Year 4 of the First Increment.
2. Colorado will complete construction of the Tamarack I and
commence full operations by the end of Year 4 of the First Increment.
3. CNPPID and NPPD will implement an Environmental Account for
Storage Reservoirs on the Platte System in Nebraska as provided in FERC
licenses 1417 and 1835.
4. The Reconnaissance-Level Water Action Plan, as may be amended
by the Governance Committee, will be implemented and capable of
providing at least an average of 50,000 acre-feet per year of shortage
reduction to target flows, or for other Program purposes, by no later
than the end of the First Increment.
5. The Land Plan, as may be amended by the Governance Committee,
will be implemented to protect and, where appropriate, restore 10,000
acres of habitat by no later than the end of the First Increment.
6. The Integrated Monitoring and Research Plan, as may be amended
by the Governance Committee, will be implemented beginning Year 1 of
the Program.
7. The Wyoming Depletions Plan, as may be amended with the
approval of the Governance Committee, will be operated during the First
Increment of the Program.
8. The Colorado Depletions Plan, as may be amended with the
approval of the Governance Committee, will be operated during the First
Increment of the Program.
9. The Nebraska Depletions Plan, as may be amended with the
approval of the Governance Committee, will be operated during the First
Increment of the Program.
10. The Federal Depletions Plan, as may be amended with the
approval of the Governance Committee, will be operated during the First
Increment of the Program.
4. How will the stakeholders define success or failure? How will
specific successes or failures be reported to the Natural
Resources Committee since the Program will need to be
reauthorized at some point?
The stakeholders, who have representatives on the Program
Governance Committee, will be monitoring the Program and its impacts on
them throughout the implementation of the Program. Unlike a compact or
court decree, each state and the Department of Interior has the option
of withdrawing from the Program at any time. Therefore if the
stakeholders in any state do not believe the Program is a better
alternative than complying with the Endangered Species Act without the
Program, they can convince their Governor to withdraw from the Program.
5. Another Program element calls for 10,000 acres to be used for
recovering the species. Have these lands been identified? How
many are private? Is there a preliminary breakdown or plan of
lands that will be acquired by outright purchases, easement or
other means? What entity will own the lands that are purchased?
The Program has developed some basic criteria for lands that would
be suitable for acquisition to meet Program goals, however, specific
tracts of land have not yet been identified, nor has a preliminary
breakdown of how these lands will be acquired been developed. Most of
the land acquired will be private lands.
The Program is planning to appoint a land holding entity to act as
a trustee to hold title to real estate and to receive conservation
easements for real estate, or any other form of interest in real estate
deemed beneficial to the purposes of the Program by the Program
Governance Committee. Property shall be accepted in the name of trustee
and shall be held by the trustee subject to all existing encumbrances,
easements, restrictions etc. The property shall be held in trust on
behalf of Program until the property is conveyed, free of this Trust.
6. What assurances can you give that nearby rural communities won't
experience negative impacts associated with federal land
acquisition, land being taken out of production or increased
land rents and values for young farmers?
There are no assurances that there won't be impacts on communities
or young farmers due to land being taken out of production or increased
land rents and values. However, the State believes that without the
Program, the impact of complying with Section 7 of the Endangered
Species Act would have an even greater adverse impact on farmers and
communities.
7. Could ESA water needs under this Program trump the Modified North
Platte Decree and State Water law?
In crafting the Program, the partners to the Program were very
careful to do nothing that would violate the Modified North Platte
Decree, the South Platte Compact or state water rights. However, there
is a question of whether the ESA can trump an interstate decree or an
interstate compact. I am not an attorney but as I understand the
experience of others, Congress has enacted legislation that has ahd an
impact on decisions of a federal district court or an appeals court.
However, although the issue has been raised at least once regarding the
Endangered Species Act and a Compact regarding the silvery minnow, the
court chose not to address the issue. This question was raised
discussed but not addressed during the Nebraska v. Wyoming litigation
and settlement negotiations. To my knowledge, the question of whether
the Endangered Species Act can trump an equitable apportionment case
before the U.S. Supreme Court Decree remains unanswered.
______
Mrs. Napolitano. Thank you.
Next, Ted Kowalski.
STATEMENT OF TED KOWALSKI, PROGRAM MANAGER,
COLORADO WATER CONSERVATION BOARD
Mr. Kowalski. Good afternoon. Thank you, Madam Chairman and
Members of the committee. I appreciate your focusing on this
important issue here today.
My name is Ted Kowalski. I work for the Colorado Water
Conservation Board, and the State of Colorado firmly supports
this legislation, H.R. 1462. We would like to thank
Representative Udall for his leadership in this regard and the
other cosponsors who have signed onto this important
legislation.
By way of background, and the North Platte and South Platte
River basins both begin in Colorado, and I thought it was
interesting as well that every single one of the Colorado's
seven congressional districts touch in some portion the North
or the South Platte basin. I think that just goes to show how
important it is to the entire State of Colorado that we get
this legislation to allow us to participate in this
collaborative recovery effort.
As has been noted in the testimony previously, this has
been a very long process to get to this program where we have
an agreement between the three basin states, the Federal
government, but we also have water users and environmental
interests, other stakeholders who are firmly committed to this
program, and I think it just is a testament to the people
involved and to the energy and the persistence of both the
people and the entities involved to get to the finish line.
We are not there yet. We need this legislation to authorize
the Federal government to participate in the program. The
program, as was noted before, is modeled after the very
successful Upper Colorado and San Juan River Recovery Programs,
two other programs that Colorado is also supportive of and has
been involved in for years.
I think we are starting to see some of the fruits of those
efforts in the recovery of those species involved in each of
those basins, and I think this is a similar worthwhile effort
on the Platte River side.
It is incremental. It is expected the first increment will
be 13 years. We are looking at basically four primary aspects
of the program. There is the land aspect, the 10,000 acres
within the first 13 years that will be acquired and restored
for habitat. There is the water piece, which will provide up to
130,000 to 150,000 acre feet on average to target flows in the
affected area.
There are established depletion plans by the states and the
Federal government, and there is an integrated monitoring and
research plan that will be effectuated through the adaptive
management process.
I think really this process or this program is the first to
go forward with an adaptive management plan this early in its
inception, and we have really worked hard to understand what
adaptive management means and make sure it is an integrated
part of this program.
I echo the comments of everyone who has spoken before me
about the importance of pursuing this on a programmatic,
collaborative process. This is a lot more effective. It is a
lot more efficient use of our resources.
I can't stress how important it is to the State of Colorado
that we aren't having to seek ESA compliance on a project by
project by project basis, but rather we will have a streamlined
process whereby water users within the State of Colorado will
be able to obtain ESA compliance in a very quick and
inexpensive way compared to if they had to do this on a case by
case by case basis.
I indicated that Colorado is dedicated to this program, and
we put our money where our mouth is. We have dedicated $7
million already. Colorado has both water and cash obligations.
$24 million is coming from the State of Colorado. To meet our
water portion we have dedicated $2 million, and we are $5
million toward the cash contribution.
We also have pending legislation for an additional $3
million this year, so we will be a third of the way in the
first six months of the program to meeting our cash obligation,
but we have also identified how we will meet the rest of those
financial obligations.
In addition, there is an MOU between the State of Colorado
and the water users through the SPWRAP group where they will
act as a backstop. Should the state be unable to fulfill is
obligations, SPWRAP will step in and assist the state to the
extent necessary.
It is important to note that the Colorado Water
Conservation Board, a statewide policy board, has passed a
resolution in support of this program. That has been submitted
for the record.
Once again, I thank you for your consideration, and I hope
that you will support this important legislation for Colorado.
[The prepared statement of Mr. Kowalski follows:]
Statement of Ted Kowalski, Colorado Water Conservation Board
Chairwoman Napolitano and Members of the Subcommittee:
My name is Ted Kowalski and I manage the Platte River Program for
the State of Colorado. Thank you for inviting me to testify before you
in support of the Platte River Recovery Implementation Program and
Pathfinder Modification Authorization Act. The State of Colorado
appreciates this subcommittee's attention to these issues, and we are
grateful to Representative Udall for his leadership in pursuing this
important legislation.
By way of background, the North and South Platte Rivers start in
Colorado. It is interesting to note that each of Colorado's seven
congressional districts includes a portion of North or South Platte
River basins within it. The South Platte River basin is Colorado's most
populous basin, with more than 3 million residents. Like much of the
western United States, the population in the South Platte basin is
increasing dramatically. With the increases in population in Colorado
comes additional water development.
For many years, the States of Colorado, Nebraska, Wyoming, and the
Department of the Interior have been working with our stakeholders to
establish the framework for an Endangered Species Act Recovery Program
(Program) to recover the endangered whooping crane, interior least
tern, and pallid sturgeon, and the threatened piping plover. Each of
these species has designated habitat the State of Nebraska along the
Platte River. That critical habitat is impacted by actions upstream of
it in Wyoming and Colorado. I am pleased to testify that this hard work
has paid off, and that the three States and the federal government
signed a Program agreement in the fall of 2006. The Program,
established by that agreement, began on January 1, 2007.
The Program is modeled after the very successful and longstanding
Upper Colorado River Recovery and the San Juan River Recovery Programs.
The State of Colorado has benefited from these programmatic approaches
to recovering endangered species while allowing water development to
continue within the States that participate in these types of recovery
programs.
The Platte Program is incremental, and the first increment is
expected to last thirteen years. Within the first thirteen years, the
participants will: 1) acquire and restore 10,000 acres of habitat; 2)
provide 130,000 to 150,000 acre-feet of water to meet certain target
flows; 3) operate within state and federal laws and the depletion plans
established under the Program; and, 4) provide integrated monitoring
and research through a comprehensive adaptive management plan.
By pursuing recovery of these species on a programmatic basis, as
opposed to pursuing recovery efforts on a case-by-case basis, we will
use our resources more efficiently and effectively. Moreover, water
users will benefit from streamlined consultations with the Fish and
Wildlife Service as opposed to individualized consultations and
negotiations.
Colorado is dedicated to the success of the Platte River Recovery
Program. The State has already appropriated and authorized the
expenditure of up to $7 million dollars to meet Colorado's cash and
water obligations. In addition, there is legislation pending that
immediately authorizes an additional expenditure of $3 million dollars
on July 1, 2007 and sets forth a plan to fund the majority of
Colorado's remaining obligations over the next several years. Water
providers, environmental organizations, and the agricultural community
have all expressed support for the State legislation.
Water providers, in particular, have been partners with the State
since the beginning of the three states negotiations. Colorado water
users have established an organization called the South Platte Water
Related Activities Program (SPWRAP), which is a nonprofit organization.
SPWRAP has the authority to assess annual assessments from its members,
and to use that money to help the State of Colorado meet its
obligations under the Program.
It is important to note that the Colorado Water Conservation Board,
Colorado's statewide water policy board, unanimously passed a
resolution in support of this federal legislation. A copy of this
resolution is attached to this statement.
Once again, thank you for your consideration. We hope that you will
support this legislation that is important to the Recovery of
endangered species and the citizens of the United States and in
particular the States of Colorado, Wyoming and Nebraska. I am available
to answer any questions that you may have.
______
STATE OF COLORADO
Colorado Water Conservation Board
Department of Natural Resources
1313 Sherman Street, Room 721
Denver, Colorado 80203
Phone: (303) 866-3441
FAX: (303) 866-4474
www.cwcb.state.co.us
May 8, 2007
Chairwoman Grace Napolitano
United States House of Representatives
Committee on Natural Resources
Subcommittee on Water and Power
1522 Longworth HOB
Washington, DC 20515
By email to: Emily.Knight@mail.house.gov
Dear Chairwoman Napolitano and Members of the Subcommittee,
Thank you for inviting my testimony before you in support of HR-
1462, the Platte River Implementation Program Pathfinder Modification
Authorization Act. I appreciated the opportunity to advise the
subcommittee about the Platte River Implementation Program and the
importance of this legislation.
This legislation is vital to the success of the Program. I am
attaching your questions and answers (in bold following each question).
I hope this is helpful to you and your subcommittee. Thank you for your
attention to this important legislation.
Sincerely,
Ted Kowalski
Program Manager
Colorado Water Conservation Board
______
Response to questions submitted for the record by Ted Kowalski
Additional questions from Ranking Member McMorris Rodgers:
Can an outside group not party to the Platte River Program (Program)
referenced in the bill still file NEPA, ESA-related or other
litigation on existing federal projects that are covered under
the Program?
Outside groups could file NEPA, ESA-related or other litigation on
existing federal projects that are covered under the Program.
A main element under this Program is to dedicate up to 150,000 acre
feet to endangered species. Much of this water will be taken
from farmers and communities. Please provide specific
mitigation plans for these water losses?
The water contributions to the Program include initial water
projects that will dedicate up to 80,000 acre feet annually towards
target flows, and an additional 50,000 to 70,000 acre-feet annually
that will be met through the water action plan. Colorado's initial
water project will not ``take'' water from farmers and communities, but
rather will retime water (through the Tamarack Recharge Project and
other similar projects) from times of excess to times of shortages.
Should Colorado seek to purchase or lease additional recharge credits,
this would be done on a ``willing seller'' basis. The water action plan
is a reconnaissance-level plan and how the parties have not yet decided
how we will meet these obligations. Any water that will be leased or
purchased under this water action plan will also be on a ``willing
seller'' basis and water rights holders will be justly compensated.
The first phase of this Program and this bill's authority will last 13
years. What quantifiable and numerical ESA recovery goals are
in the Program?
The Program does not include identifiable goals for recovery of the
species; however, the Biological Opinion and the Environmental Impact
Statement include explicit recovery goals. The Program does include
milestones for the water plan, the land plan, the adaptive management
plan, and the individual depletion plans. These milestones must be met
in order to benefit from the regulatory certainty that the Program
affords the participants.
How will the stakeholders define success or failure? How will specific
successes or failures be reported to the Natural Resources
Committee since the Program will need to be reauthorized at
some point?
Successes and failures will be evaluated and re-evaluated through
the Adaptive Management Plan. The Adaptive Management Plan was
developed so that it can test competing hypotheses, and readjust
management actions based on the results of actions taken and habitat
responses.
Another Program element calls for 10,000 acres to be used for
recovering the species. Have these lands been identified? How
many are private? Is there a preliminary breakdown or plan of
lands that will be acquired by outright purchase, easement or
other means? What entity will own the lands that are purchased?
The specific lands that will be purchased have not been identified.
The Program operates on a ``willing buyer/willing seller'' basis. The
Program does have a list of attributes that will make lands more
desirable. The type of property rights obtained will be determined on a
case by case basis, in consultation with the Land Advisory Committee.
The Program is in the process of establishing a Land Interest Holding
Entity that will hold title to the land interests.
What assurances can you give that nearby rural communities won't
experience negative impacts associated with federal land
acquisition, land being taken out of production or increased
land rents and values for young farmers?
The rural communities should not be negatively impacted by the
Program. The Program has an articulated ``good neighbor'' policy and
the Program will acquire land on a ``willing buyer/willing seller''
policy.
Could ESA water needs under this Program trump the Modified North
Platte Decree and State Water law?
No.
______
Mrs. Napolitano. Thank you.
Next, Dan Luecke, National Wildlife Federation.
STATEMENT OF DAN LUECKE, PLATTE RIVER ISSUES CONSULTANT TO THE
NATIONAL WILDLIFE FEDERATION
Mr. Luecke. Thank you, Madam Chair and Members of the
committee. I am here representing not only the National
Wildlife Federation, but also the Whooping Crane Maintenance
Trust, American Rivers, the Nebraska Wildlife Federation and
the Colorado Environmental Caucus.
I should note as well, since it has been mentioned on more
than one occasion as a model for the Platte program, that I
represent the environmental community on the Upper Colorado
Endangered Fish Recovery Program, a program that has been in
existence since the late 1980s and has fostered both protection
of species and continued use of water by those who hold
entitlements.
A few years ago the National Research Council of the
National Academy of Sciences completed a report on the Central
Platte and found the habitat unique and an essential component
of the habitat needs of the endangered species, and at one
point in the report it noted that restoration of that habitat
must begin with water management.
This program took seriously that advice and that
admonition. It had water on its agenda already. It remained
steadfast in negotiations among all the interested parties.
Water and its management would be an essential component of the
recovery program.
The program has as its goal the reduction in shortages of
flows in the Central Platte of 130,000 to 150,000 acre feet and
land protection of 10,000 acres. The water component is based
to a large extent on retiming water, though some water will be
purchased and converted to in-stream flows as the program
progresses.
The recovery program is both flexible and comprehensive.
Like the Upper Colorado program, it is a watershed scale
program. It takes the entire basin as its management area, in
my view the only way to accomplish the kind of recovery that we
are hoping to achieve.
It is flexible because it is based upon willing seller/
willing buyer agreements for water and land. It is committed in
the case where revenues are lost, for example, in association
with land conversion that payments in lieu of taxes will be
made. It is a program that recognizes not only the enormous
economic value of the river, but its unique environmental value
as well.
The accomplishment of the objectives of the recovery
program depend upon the passage of this legislation, both for
the authorization of Federal involvement and for Federal
funding and also for the modification of an important project,
Pathfinder, in the State of Wyoming.
I urge the committee to support this program through the
passage of this bill. Thank you.
[The prepared statement of Mr. Luecke follows:]
Statement of Daniel Luecke, Consultant to
The National Wildlife Federation
INTRODUCTION
The Platte River basin is one of the most important ecosystems and
economic areas in the Rocky Mountain-High Plains region. With its
watershed in Colorado, Wyoming, and Nebraska, the river has played an
essential role in both defining the character of the region
ecologically and in sustaining the economy. Unfortunately, the
environmental value of the river has often been ignored in the pursuit
of more narrowly defined economic goals. The challenge now, from both
an environmental and economic perspective, is to begin the process of
correcting the past imbalance in an equitable and efficient fashion.
The river supports millions of ducks and geese and hundreds of
thousands of sandhill cranes on their Central Flyway migration. But
what makes the environmental challenge even more important and
imperative is the role the river plays in supporting endangered
species.
The Platte River Recovery Implementation Program (recovery program)
and its approval under the Platte River Recovery Implementation Program
and Pathfinder Modification Authorization Act of 2007 will mark a
significant step in correcting the disparity between the economic and
environmental importance of the Platte. The recovery program identifies
an initial set of flow and land protection measures that the U.S. Fish
and Wildlife Service has determined to be a sound basis for the first
stage in restoration of the structure and function of the Platte River
ecosystem in central Nebraska. The ultimate goal is the reestablishment
of a riverine/land habitat complex that can meet the needs of the
endangered whooping crane, interior least tern, and piping plover and,
farther east, the testing of actions and associated research activities
that will provide a better understanding of the needs of the pallid
sturgeon.
The states of Colorado, Wyoming, and Nebraska, their water users,
and the environmental community have accepted these resource management
goals and the associated research agenda as the basis for starting the
process of restoration. An important feature of the structure of the
recovery program is its incorporation of flexible provisions that allow
the states' water users to continue to divert water to which they are
entitled and, at the same time, providing them a substantial measure of
regulatory certainty under the Endangered Species Act. This concept of
flexibility is also incorporated in a land conservation plan that is
based on willing seller/willing buyer agreements and in a research and
monitoring protocol that incorporates a carefully constructed adaptive
management program.
National Wildlife Federation's Support for the Recovery Program and
H.R. 1462
The Platte River Recovery Implementation Program Cooperative
Agreement, signed at the end of 2006 by the Secretary of Interior and
the governors of the three states, is the product of several years of
negotiations among the states, the Department, water users, and
environmentalists (including National Wildlife Federation). It sets in
motion the process of putting in place the detailed land and water
program elements designed to reverse the long-term process of habitat
deterioration in the Platte River.
In April 2004 the National Academy of Sciences (NAS) issued a
report on the importance of the Platte River to the endangered species
mentioned above (Endangered and Threatened Species of the Platte River)
and the role of the recovery program in the Platte's restoration. The
Academy committee that reviewed the Platte agreed unanimously that the
habitat in central Nebraska is unique, that the U.S. Fish and Wildlife
Service's proposal for habitat restoration measures that have been
incorporated in the recovery program were sound, and that ultimately
``...[s]uccessful, sustainable solutions of species issues ``must begin
with water management.''
At the time the NAS report was released, the environmental
community strongly supported its conclusions and we believe they remain
applicable today. We believe that the report validates the data and
science embodied in the recovery program, a set of sound water and land
protection activities.
With the passage of H.R. 1462, we will have taken a major step in
the authorization for a Platte River Program that is based on the
following actions:
A water program that includes modifying Pathfinder Dam in
Wyoming, Lake McConaughy environmental storage in Nebraska, groundwater
recharge and management in Colorado (at Tamarack State Wildlife refuge
and elsewhere), and other water actions that will reduce flow shortages
in the central Platte by at least 130,000 to 150,000 acre-feet.
Channel improvements in the North Platte River near the
town of North Platte that will increase capacity to 3,000 cubic feet/
second (cfs) or such improvements that will increase the flood stage to
six feet allowing the U.S. Fish and Wildlife Service to use its
McConaughy environmental water to produce a flow of at least 5,000 cfs
at Lexington, Nebraska for three days in the spring.
A 10,000-acre land plan based on habitat complexes that
will establish channel areas and other important habitat by means of
purchase, permanent conservation easements, and long-term leases.
A sediment management plan that will clear islands
upstream of the central Platte habitat and that will be sufficient to
ensure no further river habitat degradation downstream.
A research and monitoring plan that will be sufficient to
track the impacts of all changes to the habitat and their relationship
to species.
CONCLUDING COMMENT
We believe that there is a clear need for an endangered species
recovery program in the Platte River that is basinwide, comprehensive,
and cooperative. Because we recognize the importance of constructing a
program that is politically feasible, we support the program's key
principles of protecting water entitlements, of willing seller/willing
buyer land conservation arrangements, an incremental approach to
habitat improvement and protection, and adaptive management. The
recovery program honors all these key principles. For these reasons and
because the Platte is a unique and vital habitat, the National Wildlife
Federation supports the recovery program and urges this committee and
the House to authorize the program by passing H.R. 1462.
______
Response to questions submitted for the record by Dan Luecke
Additional Questions from Chairwoman Napolitano:
How do you know that flows that benefit one species (for example,
whooping cranes) will not have adverse effects on another
species (for example, pallid sturgeon)? Could restoration
activities have unintended consequences for these listed
species?
The flows that have been identified by the U.S. Fish and Wildlife
Service (``species flows,'' ``pulse flows,'' and ``peaking flows'') are
primarily for the bird species in the Big Bend reach of the Platte.
Specific flows have yet to be identified for the pallid sturgeon, but
there is an assumption that peak flows may be important.
How will the Platte River habitat restoration benefit specific species
of concern? Will a ``one size fits all'' habitat restoration
benefit all the threatened and endangered species?
The water and land components of the recovery plan have identified
specific needs for each of the species.
What entity will own the land acquired with the implementation of the
recovery program?
The land will be owned by a ``land holding entity'' whose only
responsibility will be to retain deeds and leases. All management
decisions regarding land (beginning with the decision to purchase or
lease land) will be made by the governance committee based on
recommendations that come from the land committee.
Where will the money for the acquisition of land come from?
The money from land acquisition will come from the state and
federal contributions to the program budget.
Do landowners along the proposed channel improvements have problems
with the increased flows as a result of the Recovery Program?
One of the fundamental commitments of the recovery program is a no
flooding policy.
Will improved recreation opportunities be compatible with habitat
restoration?
One of the responsibilities of the land committee will be to
establish land use plans that will include opportunities for recreation
that are compatible with the habitat complexes that are created.
Additional questions from Ranking Member McMorris Rodgers:
Can an outside group not party to the Platte River Program (Program)
referenced in the bill still file NEPA, ESA-related or other
litigation on existing federal projects that are covered under
the Program?
The recovery program is designed to meet the requirements of ESA
and NEPA and, if program milestones and other obligations are met, to
provide program participants with ESA protection, but there is nothing
that would prevent groups outside the program from filing ESA or NEPA
law suits.
A main element under this Program is to dedicate up to 150,000 acre
feet to endangered species. Much of this water will be taken
from farmers and communities. Please provide specific
mitigation plans for these water losses?
The two main parts of the recovery program's water management plan
designed to reduce target flows shortages in the Platte are the states'
projects and the water action plan. The states' projects are the
Environmental Account (EA) in Lake McConaughy (Nebraska's
contribution), the storage reclamation project in Pathfinder Reservoir
(Wyoming's contribution), and the Tamarack groundwater management and
recharge Program (Colorado's contribution). These three projects are
expected to reduce shortages by an average of about 80,000AF/yr by
retiming water. They do not take water out of current uses. The water
action plan consists of a number of smaller projects and actions (e.g.,
expansion of Tamarack, groundwater management, offstream reservoir,
water leasing, water management incentives, power interference, and so
on), some of which retime water (e.g, Tamarack expansion, groundwater
management, offstream storage) and some change water use (e.g., water
leasing and possibly power interference). Leased water will be paid for
and power interference will be compensated. All water action plan
elements that involve a change of use will be compensated.
The first phase of this Program and this bill's authority will last 13
years. What quantifiable and numerical ESA recovery goals are
in the Program?
The recovery program contains specific milestones on actions that
must be taken to put in place the states' projects, the water action
plan, the creation of land habitat complexes, future depletion plans,
and associated research and monitoring protocols in the context of an
adaptive management plan (AMP). The AMP contains explicit hypotheses on
the relationship between management actions and expected outcomes. The
recovery program does not contain numeric goals or targets for species
numbers or minimum viable population sizes.
How will the stakeholders define success or failure? How will specific
successes or failures be reported to the Natural Resources
Committee since the Program will need to be reauthorized at
some point?
Success will be measured against meeting milestones for program
actions associated with implementing the water and land plans and
measurements of habitat improvement base on data gathered under the
research and monitoring program. I would anticipate that the report on
program successes and failures that will be made to the Natural
Resources Committee will be based actions, milestones, and habitat
response.
Another Program element calls for 10,000 acres to be used for
recovering the species. Have these lands been identified? How
many are private? Is there a preliminary breakdown or plan of
lands that will be acquired by outright purchase, easement or
other means? What entity will own the lands that are purchased?
The lands have not been identified, but criteria have been
developed and concept of land habitat complexes articulated. The plan
is to establish three complexes of slightly over 3,000 acres each and
identify other lands that would not be part of the complexes, but would
allow for the testing of competing hypotheses on species needs (e.g.,
reclaimed sand pits as nesting areas). The lands that will be part of
the complexes are very likely now private. There is not, at this
moment, a specific mix of purchased, leased, and easement based land
arrangements. A land holding entity is being created to hold the land
interests (deeds, leases, etc.)
What assurances can you give that nearby rural communities won't
experience negative impacts associated with federal land
acquisition, land being taken out of production or increased
land rents and values for young farmers?
The interests in land will not be held by a federal agency, but by
the land holding entity. All land arrangements will be based on
voluntary agreements, the recovery program is committed (in writing) to
a good neighbor policy, and the program will make payments in lieu of
taxes.
Could ESA water needs under this Program trump the Modified North
Platte Decree and State Water law?
No.
______
Mrs. Napolitano. Thank you very much.
Mike Purcell, Wyoming Water Development?
STATEMENT OF MIKE PURCELL, DIRECTOR, WYOMING WATER DEVELOPMENT
COMMISSION AND CHAIRMAN OF THE GOVERNANCE COMMITTEE
Mr. Purcell. Thank you, Madam Chair. I am Wyoming Governor
Dave Freudenthal's representative on the Governance Committee
of the Platte River Recovery Implementation Program, and
presently I am serving as the chair of that committee.
I sincerely thank you for providing me the opportunity to
provide testimony in support of H.R. 1462. My colleagues have
done a good job explaining the benefits of the program. I would
only add a couple things and emphasize that this program
affords the states the opportunity to address ESA issues
through cooperation rather than conflict.
Obviously you are aware we are seeking $157 million. I want
to emphasize the fact that we, the three states, are working
very hard to match your investment as well. To match the
Federal funding, the three states are making $160 million in
contributions. These contributions include $30 million in cash,
approximately 3,000 acres of land and an average of 80,000 acre
feet of water per year.
Program cash will be dedicated to additional land
purchases, providing an additional 50,000 to 70,000 acre feet
of water, and of course the very important scientific adaptive
management program. I am proud to report that Wyoming has
appropriated its share of this $30 million and that we are
ready to do business.
While it does not show up as a contribution to the match,
it should not be overlooked that the states have also agreed to
curtail their water use to 1997 levels. We are each doing that
through different ways, but I want to assure you. Achieving
these thresholds will be costly and will affect future water
use and management decisions in all three states.
I would like to turn now to the Pathfinder Modification
Project regarding the authorization for the Secretary of the
Interior to modify Pathfinder Dam and Reservoir and to enter
into agreements with the State of Wyoming for the
implementation of the project.
The State of Wyoming is willing and ready to complete the
necessary agreements and provide the funding for the project.
The Wyoming legislature has approved an appropriation of $8.5
million to complete the project. There are no Federal funds
involved.
The Bureau of Reclamation has a Wyoming water right to
store 1,070,000 acre feet of water in Pathfinder Reservoir for
the benefit of the North Platte Project, which includes
irrigation lands in eastern Wyoming and western Nebraska. Over
the years, approximately 54,000 acre feet of the storage space
has been lost to sediment.
The project proposes to simply raise the height of the
emergency spillway by 2.4 feet. That will allow us to recapture
the full permitted capacity of 1,070,000 acre feet, thereby
perfecting the Federal entitlement under Wyoming water law.
The operations of the project were carefully crafted during
a little skirmish we call the Nebraska v. Wyoming lawsuit. The
parties to that lawsuit were the United States, Nebraska,
Colorado and Wyoming, which we were having little skirmishes in
court at the same time we were cooperating in the development
of this program. Again, the operations of the project were
crafted in that settlement, which was ultimately approved by
the U.S. Supreme Court in November 2001.
There are two accounts, two storage accounts in the
Pathfinder Modification Project. The first, approximately
34,000 acre feet of the recaptured space, has been designated
as the environmental account, which is Wyoming's water
contribution to the program on behalf of its water users,
including the Federal government and its major storage
facilities on the Platte River basin in Wyoming.
The remaining 20,000 acre feet of storage space has been
designated as the Wyoming account, which will be operated to
provide a much needed supplemental municipal supply for
communities along the North Platte River, as well as a water
supply to meet certain specified obligations that Wyoming has
taken on in the settlement of the Nebraska v. Wyoming lawsuit.
In return for the Wyoming account, the State of Wyoming is
giving up permits and entitlements to what we had called the
Deer Creek Dam and Reservoir Project that would have been a
substitute. The Wyoming account is going to serve as a
substitute for that previously proposed project.
In conclusion, Madam Chair, the Pathfinder Modification
Project is essential for Wyoming in order to meet its
obligations to the Platte River Recovery Implementation Program
and the Nebraska v. Wyoming settlement.
Again, thank you for the opportunity to meet with you
today, and I would be happy to answer any questions you have.
[The prepared statement of Mr. Purcell follows:]
Statement of Mike Purcell, State of Wyoming
My name is Mike Purcell. I am Wyoming Governor Dave Freudenthal's
representative on the Governance Committee of the Platte River Recovery
Implementation Program. Presently, I am serving as Chairman of that
Governance Committee. I would like to offer the following thoughts
relating to the importance of H.R. 1462 to the Department of Interior,
States of Colorado and Nebraska, and, in particular, the State of
Wyoming.
The Platte River Recovery Implementation Program and Pathfinder
Modification Project enjoy the support of water users in the Platte
River Basin in Wyoming, including the irrigators that contract for
federal storage water, several municipalities, and others.
I. Platte River Recovery Implementation Program (Program)
Issues related to the endangered birds and the critical habitat in
the Central Platte River in Nebraska have affected water use and
management in the States of Colorado, Nebraska, and Wyoming since the
late 1970's. They have affected the relationships between the states
and with the federal government. The Platte River Recovery
Implementation Program affords the states the opportunity to address
these issues through cooperation rather than conflict.
After 14 years, the negotiations have been completed. The Wyoming
Legislature has approved the state's Program financial contribution of
$6M and Governor Freudenthal and the other signatories have executed
the necessary agreements. The Program commenced on January 1, 2007.
The Program will provide the states coverage under the Endangered
Species Act (ESA) through simplified consultation processes for
existing water related activities and certain specified new water
related activities. The states and their water users will not be
required to complete contentious ESA consultations on each water
related activity requiring federal approvals. Without the Program,
proponents of these activities would likely be required to provide
funding and water to gain clearance under the ESA.
A. Key Components of the Program
1. A major Program objective is to provide 130,000-150,000 acre
feet of water per year to reduce shortages to the Fish and Wildlife
target flows in the Central Platte.
2. Another Program objective is to provide and maintain 10,000
acres of habitat in the Central Platte.
3. The monetary budget is approximately $187M for the first
increment of the Program. The federal government will provide
approximately $157M. To match the federal funding, the three states are
making $160M in contributions. These contributions include: $30M in
cash, approximately 3,000 acres of land, and an average of 80,000 acre
feet of water per year. Program cash will be dedicated to additional
land purchases and restoration, additional water (50,000-70,000 acre
feet of water per year), and an adaptive management program.
4. While it does not show up as a contribution to match the federal
funding, it should not be overlooked that the states have also agreed
to curtail their water use to 1997 levels. Each state has developed a
depletions plan which has been approved by the parties that outlines
how that state will manage its water to meet this threshold.
Implementing these depletions plans will be costly and will affect
future water use and management decisions in all three states.
5. The first increment of the Program will be 13 years. Provisions
in the Program call for additional increments if needed and if approved
by the states and the Department of Interior.
6. An adaptive management scientific approach will be implemented
to determine the water and habitat needs of the endangered birds
(whooping crane, least tern, and piping plover) in the Central Platte
River basin in Nebraska and the pallid sturgeon in the Lower Platte
River basin in Nebraska. The states and their water users will have a
seat at the table during the development of this information, which
will become the best scientific information available for ESA purposes
and will become the basis of future consultations.
7. The Program will be implemented by a Governance Committee in
which the states and their water users will both have individual
members. The Committee will operate on a consensus basis, which will
ensure that all views must be addressed.
8. The Program will serve as the reasonable and prudent alternative
under the Endangered Species Act for existing water related activities
(depletions) that occurred prior to July 1, 1997, the date of the
initiation of the Cooperative Agreement which led to the Program, and
certain specified new water related activities.
B. Why?
Wyoming, Nebraska, and Colorado became interested in the Program
when it became apparent that the ESA provided the U.S. Fish and
Wildlife Service the authority to require the replacement of existing
depletions until it achieved its water supply goal for the critical
habitat in the Central Platte River in Nebraska. Therefore, the three
states, the Department of Interior, affected water users, and
environmental groups began seeking a cooperative solution in 1993.
Why did the states stay the course during 14 years of negotiations
relating to the Program? The state representatives had several meetings
and discussions relating to future life without a Program and came to
the following conclusions:
1. The Fish and Wildlife Service would be obligated under ESA to
undertake separate ESA consultations on the federal reservoirs and
other major reservoirs in each state. The likely outcome would be that
the operations of those reservoirs that are presently serving our water
users would be reconfigured to provide 417,000 acre of feet water for
the endangered species and their habitat. The loss of this water would
``ripple'' through each state's water right system impacting not only
the users of the storage water but also all water users in our states.
2. Without the Program, ESA consultations required for future
federal actions (permits, including renewals; funding; contracts;
easements; and others) would require our water users (irrigators,
municipalities, industries and others) to replace existing and proposed
new depletions.
3. Prolonged and costly law suits would likely be initiated by each
state, or by the states collectively, challenging the ESA and the Fish
and Wildlife Service's interpretation of the ESA. Recent case history
indicates that unless there is meaningful reform to ESA, investments in
such litigation would likely be lost.
II. Pathfinder Modification Project
A. Description
The Pathfinder Modification Project is authorized by Appendix F to
the Final Settlement Stipulation relating to the Nebraska v. Wyoming
law suit, as approved by the U.S. Supreme Court. A copy of the
Stipulation is attached to this written testimony. The Bureau of
Reclamation (USBR) has a Wyoming water right to store 1,070,000 acre
feet of water in Pathfinder Reservoir for the benefit of the North
Platte Project, which includes irrigated land in Eastern Wyoming and
Western Nebraska. Over the years, 53,493 acre feet of the storage
capacity of the reservoir have been lost to sediment. The project would
recapture this storage space. The recaptured space would be
administered through two accounts, the ``Environmental account'' and
the ``Wyoming account.'' The operation of these accounts was carefully
crafted during the negotiations that lead to the settlement of the
Nebraska v. Wyoming law suit which has been approved by the U.S.
Supreme Court in November, 2001. The United States and the States of
Colorado, Nebraska, and Wyoming were parties to the negotiations.
An ``Environmental account'' consisting of 33,493 acre feet of the
proposed 53,493 acre foot enlargement will be established and will be
operated for the benefit of the endangered species and their habitat in
Central Nebraska. The Environmental account is Wyoming's water
contribution to the Platte River Recovery Implementation Program
(Program) on behalf of all of its water users in the Platte River
basin, including the federal government and its major storage
facilities in our state and irrigators in Nebraska that rely on storage
water from the federal dams in Wyoming.
The State of Wyoming has the exclusive right to contract with the
USBR for the use of 20,000 acre feet of the enlargement capacity in a
``Wyoming account.'' The USBR, under contract with Wyoming, will
operate the 20,000 acre feet of storage to insure an annual firm yield
of 9,600 acre feet. This is the same yield that was anticipated from
the proposed Deer Creek Dam and Reservoir. Upon completion of the
Pathfinder Modification Project, Wyoming will cancel existing water
rights and federal permits pertaining to the Deer Creek Project.
The ``Wyoming account'' will serve as a much needed supplemental
water supply for Wyoming's municipalities during times of water rights
regulation. Many of the municipal water supplies along the North Platte
River have junior water rights which may be shut off or severely
curtailed during water rights regulation. The account will also provide
water to meet some of Wyoming's obligations specified in the Nebraska
v. Wyoming settlement agreement and documented in the Modified North
Platte Decree.
The modification would be accomplished by raising the elevation of
the existing spillway by approximately 2.4 feet with the installation
of an ogee crest. The recaptured storage space would store water under
the existing 1904 storage right for Pathfinder Reservoir and would
enjoy the same entitlements as other uses in the reservoir, with the
exception that the recaptured storage space could not place regulatory
calls on existing water rights upstream of Pathfinder Reservoir, other
than the rights pertaining to Seminoe Reservoir.
The Pathfinder Modification Project is essential to Wyoming in
order for the state to meet its obligations under the Program and the
Modified North Platte Decree.
B. Status
State authorization to contract with the USBR was approved by the
2006 Wyoming Legislature. The Wyoming Legislature has approved an
appropriation of $8.5M to implement the project.
The next critical step is securing Congressional authorization for
the Secretary of the Interior to modify the Pathfinder Dam and
Reservoir and enter into agreements with the State of Wyoming for the
implementation of the project. Upon receipt of this authorization, the
following work can be completed:
1. The USBR must obtain a partial change of use for its Wyoming
water right for Pathfinder Reservoir from the Wyoming Board of Control
for the 53,493 acre feet of Pathfinder storage water from irrigation
use to the uses proposed by the Project. The funding approved by the
Wyoming Legislature cannot be encumbered until the USBR obtains this
partial change of use. This condition was placed on the funding to
ensure that those with concerns about the project could express those
concerns before a state tribunal before construction could begin.
2. The State of Wyoming and USBR must negotiate a contract to
formalize the partnership between the parties.
3. While the final EIS for the Program will serve to address the
regional effects of the project, a site-specific NEPA document will be
required.
4. Under the PRRIP, Wyoming is obligated to have the Project
operational in 2011. However, the WWDC would like to have the project
completed as soon as possible as the water is needed to meet the
state's obligations under the Modified North Platte Decree.
C. Proposed Amendment
An amendment to Senate Bill 752 and House Resolution 1462 has been
proposed on behalf of the Upper North Platte Water Users. The proposed
amendment suggests that the Bureau of Reclamation should be restricted
from seeking water rights administration (calls for regulation) on
behalf of Pathfinder Reservoir during the irrigation season. I would
like to offer the following clarifications:
1. The Platte River Recovery Implementation Program (Program) and
the Pathfinder Modification Project (Project) will not impact the issue
of priority calls on water rights upstream of Pathfinder Reservoir
during the irrigation season. This matter relates to interpretations of
the Modified North Platte Decree and Wyoming water law.
2. All calls for regulation must be deemed valid by the Wyoming
State Engineer before any water rights administration can occur. The
Wyoming State Engineer has advised that a very difficult standard must
be overcome for such calls to be honored.
3. The Wyoming Attorney General, upon review of the Modified North
Platte Decree, concluded that such calls should not be honored
4. The matter of the effects of the Project on Wyoming water users
will be brought before the Wyoming Board of Control during its hearings
on the Bureau of Reclamation's petitions for the partial change of use
to the storage water right for Pathfinder Reservoir. The Upper North
Platte Water Users will be afforded the opportunity to present their
views and evidence to this state tribunal and state statutes ensure
that the project cannot be constructed until the opportunities for any
resulting appeals have been exhausted.
5. Please refer to Section 1 of the attached copy of Appendix F to
the Final Settlement Stipulation which states in part: ``The recaptured
storage space would store water under the existing 1904 storage right
for Pathfinder Reservoir and would enjoy the same entitlements as other
uses in the reservoir with the exception that the recaptured storage
space could not place regulatory calls on the existing water rights
upstream of Pathfinder Reservoir other than the rights pertaining to
Seminoe Reservoir.'' (Emphases added.) The Upper North Platte Water
Users are located upstream of Pathfinder Reservoir.
[GRAPHIC] [TIFF OMITTED] 34982.001
.eps[NOTE: Appendix F has been retained in the Committee's official
files.]
______
Response to questions submitted for the record by Mike Purcell,
State of Wyoming
Additional questions from Ranking Member McMorris Rodgers:
Question: Can an outside group not party to the Platte River Program
(Program) referenced in the bill still file NEPA, ESA-related
or other litigation on existing federal projects that are
covered under the Program?
Response: Yes
Question: A main element under this Program is to dedicate up to
150,000 acre feet to endangered species. Much of this water
will be taken from farmers and communities. Please provide
specific mitigation plans for these water losses?
Response: The State of Wyoming's water contribution to the Program
consists of the Environmental Account in the Pathfinder Modification
Project. The Pathfinder Modification Project is authorized by Appendix
F to the Final Settlement Stipulation, which are crafted during the
settlement of the Nebraska v. Wyoming law suit and approved by the U.S.
Supreme Court. (A copy of Appendix F is attached to my written
testimony.) The Bureau of Reclamation (USBR) has a Wyoming water right
to store 1,070,000 acre feet of water in Pathfinder Reservoir for the
benefit of the North Platte Project, which includes irrigated land in
Eastern Wyoming and Western Nebraska. Over the years, 53,493 acre feet
of the storage capacity of the reservoir have been lost to sediment.
The project would recapture this storage space; thereby perfecting the
USBR's Wyoming water right. The recaptured space would be administered
through two accounts, the ``Environmental account'' and the ``Wyoming
account.'' The ``Environmental account'' consists of 33,493 acre feet
of the recaptured space. The Environmental account is Wyoming's water
contribution to the Platte River Recovery Implementation Program
(Program) on behalf of all of its water users in the Platte River
basin, including the federal government and its major storage
facilities in our state and irrigators in Nebraska that rely on storage
water from the federal dams in Wyoming.
The utilization of the 53,493 acre feet of storage space under the
USBR's storage right for new purposes will affect other water users.
However, the majority of the water users understand that the effects of
the Platte River Recovery Implementation Program and the Pathfinder
Modification Project are far less than the impacts of unbridled Section
7 consultations throughout Wyoming. In particular, the contractors for
federal storage under the Kendrick Project, the North Platte Project,
and the Glendo Unit are affected.
The above reference Appendix F, pages 115 and 116, describes
mitigation plans in the form of funding for safety of dam issues for
federal contractors and assistance with the resolution of selenium
issues within the Kendrick Project (Seminoe Reservoir). In addition,
there are provisions in Appendix F, page 110, that ensure the
recaptured space could not place regulatory calls on existing water
rights upstream of Pathfinder Reservoir other than the rights
pertaining to Seminoe Reservoir.
Question: The first phase of this Program and this bill's authority
will last 13 years. What quantifiable and numerical ESA
recovery goals are in the Program?
Response: The Program does not include goals related to increased
populations of the species, as the cranes, terns, plovers, and sturgeon
have important habitat needs in other locations in the United States
and Canada. The Program goal in the Central Platte relates to the
restoration and maintenance of 10,000 acres of habitat in the Central
Platte. In addition, the Program has milestones related to progress on
water and land acquisition and the scientific aspects of the Program
that must be met to maintain regulatory certainty under the ESA, which
is very important to the states and water users.
Question: How will the stakeholders define success or failure? How
will specific successes or failures be reported to the Natural
Resources Committee since the Program will need to be
reauthorized at some point?
Response: In addition to achieving the habitat and milestones
discussed in the previous response, Program success can also be defined
by the development of better science through the Adaptive Management
Plan, which will better define the needs of the species and identify
the most effective means to provide habitat.
Question: Another Program element calls for 10,000 acres to be used
for recovering the species. Have these lands been identified?
How many are private? Is there a preliminary breakdown or plan
of lands that will be acquired by outright purchase, easement
or other means? What entity will own the lands that are
purchased?
Response: The lands have not been specifically identified, but a
Land Action Plan has been developed which provides general descriptions
of the lands the Program would like to acquire. It is likely that most,
if not all, of the lands are presently held by private interests. There
is no breakdown of lands that may be acquired by purchase, easements or
other means. The Program is committed to acquiring interest in land
through ``willing buyer/willing seller'' relationships. The
negotiations with the land owners will establish the manner in which
the Program acquires interests in land. A Land Interest Holding Entity
will be retained that will hold the titles, leases, easements or other
interests in land on behalf of the Department of Interior and the
States of Colorado, Nebraska, and Wyoming.
Question: What assurances can you give that nearby rural communities
won't experience negative impacts associated with federal land
acquisition, land being taken out of production or increased
land rents and values for young farmers?
Response: As previously noted, negotiations with land owners will
be on the basis of ``willing buyer/willing seller.'' In addition, the
Program has adopted a Good Neighbor Policy and will pay property taxes.
However, the Program cannot guarantee that it will not affect property
values in the area. Land is going to be acquired for habitat with or
without a Program. Without a Program, lands would be purchased by water
users seeking mitigation to comply with individual consultations under
the ESA. The only assurances we can provide is the Program's approach
will be more systematic and goal oriented.
Question: Could ESA water needs under this Program trump the Modified
North Platte Decree and State Water law?
Response: With a Program, no. Without a Program, yes. This is a
major reason that the states support the Program.
______
Mrs. Napolitano. Thank you, Mr. Purcell.
Thank you to all the witnesses. Now we will proceed with
questions from our Members.
I have a couple I will start off with to any of you. Do any
of the states have the endangered species laws? Are they more
stringent or less stringent than the Federal ESA?
Ms. Bleed. Nebraska does have a state endangered species
law. It parallels very closely to the Federal Endangered
Species Act, and the law is administered by our Nebraska Game
and Parks Commission.
Mrs. Napolitano. Anybody else?
Mr. Kowalski. Colorado does have a similar law that is
administered by the Division of Wildlife, but it is a lot less
restrictive and the penalties are a lot less onerous.
Therefore, it is so much less effectual than the Federal ESA.
Mr. Purcell. Madam Chair, Wyoming has no endangered species
law. Thank you.
Mrs. Napolitano. Thank you. No comment.
How does the program define success? Again, I am going back
to the success of what you are trying to do. How will you know
whether the program is really working?
The authority to make the changes. The program is broad in
Section 104. How does the flexibility relate to the ESA
compliance, and what oversight will you have over this?
In your experience, which is more strenuous, the Federal
ESA or the state ESA, and what constitutes consistency between
the two?
Mr. Kowalski. I could just comment specifically. You heard
about the milestones earlier in the testimony from Mr. Butler
of the Fish and Wildlife Service. Regulatory compliance is
assured as long as we are meeting those milestones. Milestones
equals compliance for water users at least mainly within
Colorado.
I already indicated that Colorado's Endangered Species Act
law, if you will, is less stringent.
Would you like to comment about Nebraska's?
Ms. Bleed. I think the Nebraska law, which very closely
monitors the Federal law, is probably roughly comparable to the
Federal law.
The fact of the matter is that the Federal law is usually
the law that people are concerned about, and as long as we are
meeting the Federal Endangered Species Act, the state
Endangered Species Act is met so that the two complement each
other.
I would also just like to add to the how do we know when we
succeed, again I think the adaptive management program, which
sets out very detailed protocols and procedures of measuring
success, will be very helpful in determining whether what we
are doing is in fact succeeding.
Mrs. Napolitano. OK. Mr. Purcell, in your testimony you
stated the states have agreed to curtail their water use to
1997 levels.
What is the difference in water use in acre feet between
now and 1997? How will that be implemented? Who will be most
affected, and what is being done to sustain the people or
environment affected?
Mr. Purcell. Madam Chair, each state has developed what we
call a depletions plan, and each state has their own way of
maintaining this threshold. These depletion plans were
submitted and reviewed by the entire negotiating teams and were
adopted and approved as part of the program. We will annually
report, in Wyoming's case in particular, our depletions for
that year in measuring them against certain thresholds.
The program itself doesn't mean we are going to be stable
in our use. It will be stable in the levels of our use, but we
will be transferring water from one purpose to another under
those thresholds, so that is how they in fact operate.
Again, there will be annual reports to the Governance
Committee explaining what we have done in each particular year.
Mrs. Napolitano. And if they are not able to meet that what
will then happen?
Mr. Purcell. Madam Chair, we will have to throw ourselves
at the mercy of our peers and see what we can do to catch up or
to maintain our promise that we are holding stable.
The understanding is on one side providing water for the
habitat and then on the other side using more and more water,
digging the hole deeper, if you will, did not make sense, so we
are all committed to stabilizing a baseline of water use so
that the water we are providing is in fact a benefit.
Mrs. Napolitano. Thank you very much.
Mrs. McMorris Rodgers?
Mrs. McMorris Rodgers. Thank you, Madam Chairman, and thank
you, everyone, for your testimony. I have a question for
whoever would like to answer.
The main element of the program allows for certain new
water uses, and given the growing population needs in this area
I wanted to ask if you would explain what certain new water
uses means.
Mr. Kowalski. Thank you, Madam Chairwoman.
In Colorado, which has seen a tremendous amount of growth
over the last few years, more population doesn't necessarily
mean less water in the river because you have things such as
transbasin diversions from the Colorado River, so it is
actually a net accretion potentially to the river or
introduction of nontributary water. You potentially are going
to see more water in the river.
What happens as a result of this is there are periods of
net accretion to the river and periods of net depletion to the
river, so it is not that there is less water in the river. It
is just coming at different times potentially.
Colorado's depletion plan largely looks at retiming water
to times of need for the habitat. That is both true with its
10,000 acre foot water contribution, which we sometimes refer
to as the Tamarack I obligation, and then Tamarack II is what
we refer to as our new depletions obligation.
Again, it is not necessarily building more reservoirs to
put more water in the river, but it is just retiming that water
to when it meets the affected habitat.
Mrs. McMorris Rodgers. So do you see new water uses? What
kind of new water uses do you see in this plan?
Mr. Kowalski. Again, Madam Chairwoman, we are seeing
development of additional domestic uses, but there are
different ways to meet that supply. We are seeing some of it
from transbasin diversion, some of it from new water uses or
new water such as nontributary water. We also see it from ag to
urban dry ups or interruptable supply agreements and the like.
So you are seeing people or communities have a lot of
different tools in their toolbox to meet their water demands,
and what the program does is it assures that the water is
retimed or reworked or reregulated so that it will meet the
affected areas at the right time.
Mrs. McMorris Rodgers. OK.
Mr. Berryman. I might add to that just real quickly. I
think Mr. Kowalski covered it fairly well.
Colorado has really developed their unappropriated water
sources pretty much all the way. There is maybe still a little
bit of that left over. Everything else is redoing what we have
already done.
An example. In that study I mentioned that the Colorado
Water Conservation Board did for the future, their estimate was
that we may see a change of 130,000 to 200,000 acres of
irrigated land to be retired to make water available for some
of the growth.
Those are the kind of issues that we deal with, and that is
where the water comes from; either that or sources that are not
native to the basin.
Ms. Bleed. If I might add for Nebraska, in 1993 the State
of Nebraska did provide permits for in-stream flows for fish
and wildlife on the Platte River, and soon after we declared a
moratorium on issuing new surface water permits saying that
there was no longer any available water to appropriate to new
permits, so we have already done a fair amount in terms of
surface water in the Platte River in Nebraska.
In addition, in 2004, the state passed a fairly
encompassing interrelated water management bill that has
essentially said that the Platte River in the western two-
thirds of the state is fully appropriated. We have shut down
the new uses of water, the expansion of irrigated land and so
that cannot occur.
However, you can have new uses of water by transferring
water from an existing use to the new use, and right now the
state is working with the natural resources districts in
Nebraska to establish goals for how that transfer can occur,
but we are committed to not allowing any new uses, as well as
what we refer to as backing up the train on the Platte River to
get back to the 1997 level of depletions.
Mrs. McMorris Rodgers. OK. Thank you.
Mrs. Napolitano. Yes, Mr. Udall?
Mr. Udall. Thank you, Madam Chair.
I want to thank the two representatives of the States of
Wyoming and Nebraska for being here today. It is a particular
pleasure for me to have three Coloradans here, Mr. Berryman,
Mr. Kowalski and of course my long-time friend, Mr. Luecke.
Thank you for being here.
I don't want to suggest Mr. Luecke and I are getting long
in the tooth, but I do remember when our children were toddlers
and when we had different hair color.
Thank you, Dan, for your great work over all these years
and finding some creative, collaborative approaches on these
two very important river systems that originate in Colorado and
are also depended on by people across the southwest and the
high prairie terrain. It is great to see you here. Thank you.
I wanted to if I could, Mr. Kowalski, turn to you for a
couple I think short questions that I am sure you would
anticipate. Thanks for your testimony. You did an excellent job
explaining the State of Colorado's role in developing the
recovery program and the importance of this legislation for
this state, but I know it would be helpful for the Subcommittee
and the public if you could expand on your statement by
responding to our questions.
About a year ago the Colorado state engineer ordered more
than 400 wells in the South Platte Valley to shut down. As you
know, this triggered a crisis for many farmers in the affected
area. My understanding is that this action was taken in order
to implement a relatively new provision of Colorado water law.
Is that correct?
Mr. Kowalski. Yes, it is. The Empire Lodge decision in the
Colorado Supreme Court ordered that the state engineer did not
have that authority to approve temporary substitute supply
plans, so a new law was instituted that would allow temporary
substitute supply plans for a certain number of years.
Last year was the last year where they could do that before
they got court approval. They are currently pending as a
temporary substitute supply plan before the water court that
would allow uses to occur.
Mr. Udall. So the answer is yes, it was to implement a
relatively new----
Mr. Kowalski. That is correct, yes.
Mr. Udall. Let me turn to the Endangered Species Act and
any other Federal laws. Did the ESA or any other Federal law
play a role in this shutdown we are discussing?
Mr. Kowalski. Absolutely not.
Mr. Udall. This is the nub of what I am trying to get to.
Implementing the recovery program as this bill would do would
not affect the likelihood of further shutdowns in the future?
Mr. Kowalski. No.
Mr. Udall. Again, thank you for being concise and to the
point. I again want to acknowledge the panel coming a long way
here to Washington, D.C. to help edify us and help us move this
legislation forward.
Madam Chairwoman, thank you so much for holding this
hearing. As you can tell, this is important to three states,
and I would, without being presumptuous, suggest to the Ranking
Member and the Chairwoman that our example maybe would hold
with the great states of Washington, Oregon and California, who
continue to work together in their own ways as well.
Thank you.
Mrs. Napolitano. We are doing that, sir.
Mr. Udall. I just wanted to give the Chairwoman and the
Ranking Member a chance to brag about all the great things they
are doing.
Mrs. Napolitano. We still have a lot of work to do. Thank
you, Mr. Udall.
I would like to submit my questions to you. We are running
a little short of time and some people have to catch flights.
Mrs. McMorris Rodgers? I am sorry. Mr. Smith? Yes.
Mr. Smith. Thank you. Very briefly, I just want to
acknowledge my appreciation to the panel for I think reflecting
the collaboration that has been very evident over the last
several years--finally it is all coming together--and realizing
that we have made a lot of progress in conservation with record
high yields in agriculture and record low amounts of irrigation
in the process, so we have come a long way, but obviously we
need to go a little further.
It is not that a lot of folks are fans of the Endangered
Species Act across rural Nebraska, but they understand what is
before us, and I appreciate their understanding.
That being said, Ann, I appreciate your participation here.
Certainly you know that agriculture is at the center of
Nebraska's economy, and retiring cropland from irrigation
raises concerns in these rural communities economically
primarily.
Can you maybe just share briefly about the long-term
interest that we have in this situation for the sustainability
of agriculture?
Ms. Bleed. I will try. We are very concerned about
sustaining irrigated agriculture in the basin and in the state
as a whole. It is the backbone of our economy.
One of the reasons that we passed the integrated management
law that I mentioned previously was to provide for the
sustainability of irrigated agriculture, as well as all the
other economies in the state that pertain or rely on having
water available.
It is for that reason that we are working to develop
integrated management plans where the balance of supply and use
can be maintained so that we know how much water we will have
in the future to maintain irrigated agriculture, as well as a
number of other uses, including uses for fish and wildlife.
Mr. Smith. OK. Thank you. I do want to thank you for making
this trip out here. I know that this isn't the only water issue
Nebraska faces right now, as you can attest, so I appreciate
your dedication to the issue.
Ms. Bleed. I might just add, Congressman, that the Governor
did sign a massive water bill today that will provide $2.7
million to working on just projects such as you were talking
about in terms of maintaining our water supplies.
Mr. Smith. Thank you.
Ms. Bleed. $2.7 million a year that is.
Mr. Smith. Very good. And I might also share with my
colleagues here that I guess we kind of feel your pain on this
issue because we are upstream on another issue, just like
Colorado and Wyoming are in this situation, so thank you for
your involvement and collaboration.
Thank you.
Mrs. Napolitano. Thank you, Mr. Smith.
I certainly couldn't agree with you more that if we don't
work collaboratively not only at that end, but at this end, we
cannot help resolve our country's water issues. It is going to
be critical, and more so in the future, as we face global
warming and depletion of our aquifers and loss of
precipitation, all those things. Unless we begin to understand
what we are facing and work collaboratively, I am sure we face
even worse challenges.
Thank you for your collaboration. Thank you, Mr. Peltier.
Thank you for sticking around. There were no questions. Aren't
you lucky, sir?
I certainly echo the sentiments of my colleagues. Thank you
for traveling to Washington and sitting patiently to come
before this committee and give your testimony.
Before we adjourn, I want to introduce my daughter for the
day, Courtney Ashmon, who has been very patiently sitting in
the back listening to things. She is a ninth grader. It is Take
Your Daughter To Work Day, and my baby daughter is 46, so I
don't think she would come. I adopted one for the day and just
wanted to introduce her.
I certainly want to thank my Ranking Member and both staff
who worked so very hard to ensure that testimony is brought to
us and that we understand the issues.
With that, this meeting is adjourned. Wait a minute. Before
that, under Committee Rule 4[h] additional material for the
record should be submitted by Members or witnesses within 10
days after this hearing.
I greatly appreciate the cooperation of all of you in
responding promptly to any questions that you may wish to
submit in writing.
With that, the hearing is adjourned. Thank you very much.
[Whereupon, at 3:10 p.m. the Subcommittee was adjourned.]